Reprinted with permission from ProPublica
Multiple press reports suggest Trump, in a desperate bid to cling to power, has pinned his hopes on persuading GOP-controlled legislatures in battleground states that voted for Joe Biden to intervene and throw the election to him. That aspiration cropped up in the Trump campaign's courtroom maneuverings this week. Legal papers filed with a federal court in central Pennsylvania (the campaign filed a draft version, apparently in error), showed that the campaign had contemplated — but ultimately decided against — asking the judge to order “the Pennsylvania General Assembly to choose Pennsylvania's electors."
Five states fit the description of battleground states with GOP-run legislatures that voted for Biden: Michigan, Wisconsin, Pennsylvania, Arizona and Georgia. It would be difficult to convince lawmakers to overturn the will of voters in even one state. For Trump to snatch victory from the jaws of defeat, he would need to pull that trick off in three states.
That's a very tall order. There are steep political hurdles, starting with the fact that the two Michigan lawmakers visiting the White House on Friday have previously made statements rejecting legislative intervention. But even if those lawmakers waver or succumb to Trump's arguments, as many Republicans have, there are legal impediments, and they're almost certainly insurmountable.
Unlike the fevered cries of election fraud — which many lawyers in the Trump camp have undercut by acknowledging in court that they have no evidence of fraud — the Trump side's legislature theory has some basis in fact. Article II of the U.S. Constitution holds that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors" to vote for president as a member of the Electoral College. In the early days of the republic, some legislatures chose electors directly or vested that power in other state officials. Today, every state allocates presidential electors by popular vote (and all but Maine and Nebraska apportion them in winner-take-all fashion).
As far as the Constitution is concerned, there's nothing to stop a state legislature from reclaiming that power for itself, at least prospectively. Separately, a federal law, the Electoral Count Act of 1887, provides that whenever a state “has failed to make a choice" in a presidential election, electors can be chosen “in such a manner as the legislature of such State may direct."
But even so, there's a more immediate obstacle: state law. In the five states where Trump's team hopes GOP-run statehouses will hand him a second term, the popular vote is enshrined in the state constitution, the state's election code or both.
Consider Michigan, which Biden carried by nearly 158,000 votes. The state's election code specifies that the presidential electors “who shall be considered elected are those whose names have been certified to the secretary of state by that political party receiving the greatest number of votes" for president — the winner, that is, of the popular vote. The Michigan Constitution grants qualified citizens “the right, once registered, to vote a secret ballot in all elections," including “in the election for president and vice-president of the United States."
The two Michigan Republicans expected to meet with Trump on Friday, Senate Majority Leader Mike Shirkey and House Speaker Lee Chatfield, have expressed concerns about irregularities and potential fraud in the Michigan election, a pet subject of the president and his allies. The Trump campaign and its supporters, however, have failed to substantiate their claims, despite papering state and federal courts with affidavits from GOP election observers and others who purport to have witnessed suspicious behavior or wrongdoing by election workers in Detroit, a Democratic stronghold with a sizable Black population. Last Friday, one Michigan judge called affidavits submitted by Republican observers “rife with speculation and guess-work about sinister motives" of poll workers. On Thursday, the Trump campaign withdrew a federal lawsuit it had filed in the state, claiming — falsely, according to Michigan election officials — that the county election board for the Detroit area had declined to certify the county's election result.
Yet — up till now, at least — both Shirkey and Chatfield have rejected the proposition that state legislators might intervene to supplant the will of Michigan voters. “That's not going to happen," Shirkey told Bridge Michigan on Tuesday. He noted that state law left up to the electorate who would receive the state's 16 electoral votes. Chatfield made a similar point in a statement on Nov. 6, a few days after the election, though he gave it a Trump-y spin, calling for every “legal vote" to be counted, a phrase Trump and his allies have adopted to imply that there exist large numbers of illegal votes. “The candidate who wins the most of those votes will win Michigan's electoral votes, just like it always has been," Chatfield said. “Nothing about that process will change in 2020." Their counterparts in Pennsylvania, Wisconsin and Arizona have made similar statements.
Even if Trump had changed the Michigan lawmakers' minds on Friday, the Legislature can't amend state law by fiat. A constitutional amendment has to be itself ratified by popular vote, and if it's introduced in the Legislature, it first has to pass both houses by supermajority margins. The GOP possesses only a bare legislative majority in either house. Amendments to the election code, meanwhile, are subject to veto by the governor. In Michigan, that's Democrat Gretchen Whitmer, a committed Trump antagonist who would inevitably veto any legislative attempt at the wholesale disenfranchisement of her constituents. Without supermajorities, Republican legislators alone are impotent to override her veto.
Trump faces a similar dynamic in Wisconsin and Pennsylvania, both of which have Democratic governors and legislatures controlled by the GOP (but not by enough to overcome a veto by the governor). Only Arizona and Georgia have Republican-dominated statehouses and Republican governors. Legislatures there have shown no particular inclination to intervene on Trump's behalf. Even if they went along with Trump's plan, the president would still be 11 electoral votes shy of the 270 he needs to prevail over Biden.
In concurring and dissenting opinions during the run-up to Election Day, three Supreme Court justices appeared to hint at one way around the intervention of a Democratic governor. Trump and his supporters have apparently taken the hint; they've brought up the argument repeatedly in postelection litigation. The justices, Brett Kavanaugh, Neil Gorsuch and Samuel Alito, seemed to argue that the Constitution assigned to each state legislature the exclusive power to decide how to choose presidential electors, a power free from the constraints of state courts, election officials or even a governor's veto power. A version of this argument was rejected by the U.S. Supreme Court in 2015, but two of the five justices in the majority, Ruth Bader Ginsburg and Anthony Kennedy, are no longer on the court. (Other lawyers don't go quite as far and argue that legislatures still have to follow their state's constitutional lawmaking process, which preserves gubernatorial vetoes.)
Whether a legislature could step in after the fact, however, to take the choice away from its citizens is an open question, and in any event, legal scholars say it's unlikely the high court would agree to change the rules after an election in a way that would flip its outcome. Some are skeptical that Kavanaugh, Gorsuch and Alito intended to go as far as they seemed to in their concurrences and dissents. Their approach “calls for federal courts to intervene quite assertively and resolve state law disputes between state courts or state elections officials on the one hand and state legislatures on the other," said Robert Yablon, a law professor at the University of Wisconsin. “That's not a role federal courts normally play."
One reason for Trump and his allies to seek to delay certification of state election results is that it could strengthen their hand as key deadlines set by federal law approach in early and mid-December. The Electoral Count Act expressly authorizes the legislature to step in and pick electors even after its state has held a popular vote for president if the state “has failed to make a choice." But according to a new law review article by Justin Levitt, an election law scholar at Loyola Law School, the Electoral Count Act, more clearly than the Constitution, means for the legislature to pick electors through its ordinary lawmaking processes — passing a bill that would require the governor's signature before becoming law. (The article will be published in the New York University Law Review next year but has been posted to the Social Science Research Network, an online repository of scholarship.)
One result of the Trump campaign's arguments is to leave state legislatures squeezed from both sides. Reuters on Thursday reported that the Trump campaign believes state lawmakers will fear that a failure to act could set off a backlash among voters in their districts loyal to the president. A Monmouth University poll released this week found that three-quarters of Trump supporters attribute Biden's victory to fraud, despite the absence of any evidence to support this claim.
Even so, state lawmakers enter uncharted territory if they openly subvert the will of their constituents to prop up a candidate who was outvoted in their state. The backlash against a naked power grab could well be far more profound than any backlash against a refusal to grab the election for an outgoing president. Nobody knows. That uncertainty is compounded by the fact that three state legislatures would have to intercede for Trump's new stratagem to pay off. The first to do so would put a lot at risk — potentially to achieve nothing.