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On faithless legislatures

The Washington Post is reporting on a telephone call that the President made to the Speaker of the House in Pennsylvania, asking him to appoint a new slate of electors against the vote of Pennsylvania citizens. That’s the third state in which the President has made this pitch. It comes two weeks after a meeting with Pennsylvania legislators in Gettysburg in which the President and his lawyers tried to persuade the assembled that the “fraud” of the Pennsylvania vote gave them the right to ignore the election and pick their own slate of electors. Like arguments made about presidential electors across history, the claim is that the Constitution vests legislatures with unlimited discretion to select whatever slate of electors they want at, quoting the Supreme Court in Bush v. Gore, “any time”—whether before an election or after it.

This argument is dangerous, even if it is clearly wrong. If just two legislatures followed this flawed legal advice, Pennsylvania and Michigan, and their votes were counted, Joe Biden would be left with just 270 electoral votes. And if just one elector were then “persuaded” to vote for someone other than Joe Biden, that would throw the election into the House of Representatives, where the Republicans retain a majority of state delegations, the unit for deciding who would then become President.

The question raised in Gettysburg is whether legislatures can be faithless, even if electors cannot. Yet here, the argument does not even have history on its side. If there’s one thing that’s clear about the framers’ design, it is that they plainly did not want any existing political authority to have the direct power to select the president. The framers considered giving that direct power to Congress, to state governors, and to state legislatures. They rejected each idea, concerned mainly about the obvious corruption that such schemes would induce. If in a close election, an existing authority could bargain over how their electors would vote, a president would be tied to the deals he struck to win the slates of electors necessary to reach a majority. Avoiding that corruption was precisely why the framers gave the choice to a temporary body — electors—who would then assemble and cast their ballot on a single day, thereby avoiding, the framers presumed, any opportunity, as James Madison described it, for “cabal and corruption.”

Not only is the intent of the framers contrary to the President’s plan, so too are the words of the Constitution. Yes, Article II gives state legislatures the power to determine the “manner” by which presidential electors are selected. But Article II also gives Congress the power to say when they are to be selected. Congress exercised that power by setting November 3d as the day on which electors were to be appointed. No state legislature after November 3d has any further power to select electors — as New York learned in the very first presidential election when its legislature couldn’t agree on a slate of electors in the time set by Congress.

It is true that Congress has given legislatures a backup power if an election has “failed.” In that case, a state legislature has the power to appoint electors “on a subsequent day in such a manner as the legislature of such State may direct.” But that statutory authority hangs on the statutory text: the election must have “failed.” Those words originally referenced the sort of “failure” we’ve observed in the Georgia Senate election. Like Georgia, some states originally required presidential electors to be selected by a majority vote. If an election did not produce a majority winner, then that election, in the language of the early 19th century, would have “failed.” Yet even if one applied that term more broadly, there must be some factual foundation for the claim that an election has “failed.” This election has been deemed “the most secure in American history” by the President’s own security agencies. Nothing in the reality of this election could ever qualify as “failed.”

If presidential electors are forbidden from ignoring the will of the people because “here, We the people rule,” then state legislatures are forbidden from ignoring the will of the people for the very same reason. And rather than allowing this clearly mistaken legal argument to continue to sow uncertainty, Republican Senators should make it clear right now that such a move could not have any constitutional effect. For it is ultimately Congress that must decide which slates of electors it will count. And if a clear majority of Senators would signal that they would join the House in rejecting any slate of electors chosen contrary to the legitimate vote of the people in a state, that would end this bizarre legal rebellion right now.

law professor, activist.

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