I’m going to start this story with an ‘I told you so.’ Here’s what I wrote in August …
Legislatures of each state direct the number of [Electoral College] electors for each candidate. … 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.
[snip]
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 [instead of the slate that would be appointed by voters winning the state for Biden], then Trump has the votes to win now and the Presidential election is a show.
[snip]
Are there enough Republicans of ‘good faith’ in State Legislatures to refuse to participate in this game? … 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 now, lo and behold … Mark Levin as official campaign apparatus is calling for the strategy to be executed.
Where do we go from here?
The question is not ‘if’ GOP will adopt this strategy, but ‘how will the execute it’. Not being a lawyer, I don’t completely understand the intersection of state law vs. a legislature saying ‘we’re changing the rules because we think the constitution says we can’. I do know this: just because they might lose in court doesn’t mean Trump’s GOP won’t try it.
And because of that, my fear and my prediction is that indeed the election will come down to the Supreme Court ruling on this very question … can the legislature execute a slate of electors of their own choosing under constitutional law in the face of settled state laws that prescribe how electors are chosen? I think Roberts would side with state law and state supreme courts; Gorsuch being a literalist, I have no idea what he would think … and Barrett is in the bag unless she recuses.
Thoughts?