Don’t Believe Me?
Let’s Read the Constitution
TLDR: The constitution only requires a majority vote of the “appointed” electors. If some states do not appoint electors then the number required for a majority vote by the electoral college is simply smaller.
On July 3rd Newsweek published an opinion article that rang alarm bells among those hoping Biden will be the next president. According to the article, if some states did not name any people to be part of the electoral college then Biden would not get 270 electoral votes and the US House would pick the next president which would be Trump. Here is a link to the article.
https://www.newsweek.com/how-trump-could-lose-election-still-remain-president-opinion-1513975
The basis of the article is the implicit assumption that the constitution requires 270 electoral college votes in order to be named president. As shown below, the constitution requires no such thing.
If you search the constitution on “270” you will not get any hits. So where does that number come from? The constitution provides that each state gets a number of members in the electoral college equal to the number of its representatives plus the number of its senators. Thus Wyoming can appoint 3 people to the electoral college while California can appoint 55.
Here are two of the key passages from the constitution.
“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...
...
The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed...”
(emphasis added)
If all the states appoint all the electors they are entitled to appoint, then the electoral college has 538 members and a majority requires 270 votes.
Swing states Arizona, Michigan, Pennsylvania and Wisconsin collectively have 57 electoral votes. If none of those states appoint electors then the electoral college will have 538 - 57 = 481 members and a majority of appointed electors requires 241 votes to pick the next president.
In other words, the one and only way that the 2020 election for president will wind up being made by the U.S. House of Representatives is if there is a tie in the electoral college.
Now assume there are some swing states that Biden narrowly wins and where the legislature is controlled by Republicans. Examples might include the four states previously mentioned. It is certainly at least possible that some of the legislatures for those states would refuse to appoint electors such that the electors that were appointed from the other states resulted in a majority of the “appointed” electors voting for Trump.
Now let’s look at an idea for how such an outcome might be avoided.
The federal constitution says each state legislature “shall appoint” electors. There are a bazillion court decisions holding that the word “shall” creates a mandatory duty. Thus any legislator that refuses to appoint electors would be guilty of “wilful neglect of duty”. This is sometimes referred to as nonfeasance.
Some states provide that a public official that wilfully fails to perform their duty is guilty of a misdemeanor and upon conviction can be punished by a year in jail and/or a $1,000 fine.
The state attorney general for Michigan, Pennsylvania and Wisconsin is currently a democrat. If necessary, those AGs could send a letter to each legislator stating that any attempt to avoid performing their duty to appoint electors will be charged as a misdemeanor, vigorously prosecuted and the maximum penalty sought.
