State Legislative Control as of 2018 ... a sea of red
If you haven’t seen this tweet, prepare to be terrified, because even if Jared IS incompetent, the plan has legs …
I know what you’re thinking. It’s the first thing I thought … ‘can’t happen, the law says … ’
Yes. What DOES the law say?
Well, let’s start with the primary source … the Constitution …
The colloquially-named Electoral College arises from Article II, Section 1, Clauses 2 and 3, which state that:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative, or person holding an Office of Trust or Profit under the United States shall be appointed an Elector.
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Okay, so Legislatures of each state direct the number of electors.
Fact One: There is no federal law or portion of the Constitution that prescribes citizens the right to elect the President. It’s just that after a series of crazy electoral outcomes in the early years of the Republic, most state Legislatures — under Art II, Sec 1, Clause 2 of the US Constitution — created laws that handed over their right to appoint electors to an automated system that selected Electors based on popular vote in the state.
In other words, state level laws tie your Nov. 3 vote to their selection of a slate of Electors.
Question One: When can a State decide to change its law?
Great question. Theoretically, a State cannot create an ‘ex post facto’ scenario, so maybe we think … aha, if we all vote on Nov. 3 to select Electors, then a change in law AFTER that would be meaningless.
Fact Two: The ‘election’ of the President is NOT Nov. 3. It’s December 14. That is the date on which appointed Electors arrive at the Electoral College to cast their votes. This means that a State’s Legislature has the right to appoint a slate of Electors until December 14 if they are to participate in the election of the President.
So our answer to Question One becomes … States can select the method of appointing electors up until December 14. And thus, your vote is … well … meaningless.
Unless …
Question Two: Can a Legislature select Electors without changing a conflicting State law if the Constitution prescribes that ‘… the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress...’?
The map in the headline of this article is a representation of control of legislatures around the country. But in many of the states with Republican controlled legislatures, there is a Democrat as Governor. Most importantly … Wisconsin, Michigan, and Pennsylvania.
The Constitution uses the words … ‘the Legislature may direct’.
State law in each of these states has been laid out by past Legislatures, but if a current Legislature attempts to exercise the power literally written by the Constitution to ‘directs’ that electors are NOW appointed solely by it, does that Constitutional power over-ride standing State law?
Fact Three: It takes only 270 electoral votes to win the Presidency. And if Michigan, Pennsylvania, Wisconsin, Minnesota, and all the rest send Republican electors chosen ‘legally’ by State Legislatures controlled by Republicans ahead of December 14, then Trump has the votes to win now and the Presidential election is a show. Unless he wins the vote outright. Heads he wins, tails Biden loses.
Question Three: What says the Supreme Court? Well, in the past, they have already indicated that a Legislature can indeed do what it wants …
We have no uniform national system for appointing Electors, which means the legislatures do not have to consult the public at all. When members of the Florida legislature in 2000 threatened to abandon the results of the statewide popular contest and appoint Electors for a particular candidate, the Supreme Court in Bush v. Gore (2000) appeared to endorse their power to do so by denying that citizens have a constitutional right to vote in presidential elections. As the majority put it, “The individual citizen has no federal constitutional right to vote for Electors for the President of the United States. . .” When it comes to presidential elections, the voters are at the mercy of the state legislatures.
There’s already three solid votes for Trump on the Supreme Court (Kavanaugh, Alito, and Thomas). In this scenario laid out by Kushner, Gorsuch as a ‘Textualist’ might indeed read the Constitution as written, though it is hard to know how he will vote on State Law vs. Constitution in this context. Roberts becomes the most likely swing vote, but even he might be compelled to find that the Constitution always trumps State Law. Not sure, not my area of expertise.
Question Four: Are there enough Republicans of ‘good faith’ in State Legislatures to refuse to participate in this game? Kushner is the son of a crook and the son-in-law of a conman. He has no scruples to treating the ‘good faith’ necessary for government to work well poorly in order to win. Current trends lead me to think the GOP is fine with engaging in ‘bad faith’ to achieve this outcome; but of course there is hope that somewhere in the souls of the party still burns the fires of democracy.
And if the GOP goes this route? Essentially, if we go down this path, it means that we upend the method of electing a President as we have known it for the majority of U.S. history in favor of a ‘strict constitutional interpretation’, State Law be damned. And of course, with four more years and no real further impediments, how far can Trump go then? He always has said he’s up for election again in 2024.
Update: As pointed out in comments, a few legislatures were incorrectly represented in the original image. Updated with a map reflecting 2020 control.
