More On: Presidential Elections
Before Election Day, each state must select how its members of the Electoral College will be chosen.
Another batch of emails from John Eastman, the conservative legal scholar at the heart of President Trump’s effort to overturn the 2020 election, have been obtained and published by Politico. This fresh exchange between Eastman and Pennsylvania state representative Russ Diamond provides additional insight into the arguments and strategies that brought us to the verge of a constitutional catastrophe.
In the emails, Eastman and Diamond contemplated having the Pennsylvania state legislature (where Republicans held a majority in both chambers) proclaim a new set of "untainted" vote totals by means of absurd mathematical acrobatics. Using prorated percentages across several categories of ballots, tens of thousands of votes would have been discarded under this strategy based on little more than conjecture. As noted by Phillip Bump at the Washington Post, even this proposed arithmetic would have resulted in Biden still winning the state.
Most of Eastman's arguments are based on a more serious and harmful legal theory: that state legislatures have the constitutional ability to overturn, change, or "decertify" their state's presidential election results. This theory is unconstitutional, and it should be strongly rejected in order to deter future attempts at election tampering.
State legislatures have extensive control over presidential election procedures. The Electoral College members are appointed by each state's legislature in any manner the legislature directs. This has long meant having a popular election as required by state law in every state. The elector candidates are chosen by the voters from slates of elector candidates nominated by each political party and promised to vote for that party's presidential ticket. Only the names of the presidential and vice presidential candidates, as well as their party affiliations, appear on most state ballots, but it is these pledged members of the Electoral College who are being elected.
State legislatures are not required to hold presidential elections, despite the fact that no state has done so in nearly a century and a half. A state could have its legislature choose electors, as some states did in the early republic. That's the only other alternative that's ever been utilized or seriously explored, but governments have extensive discretion to choose any technique they wish in theory. They could state that the electors will be appointed by the governor or that they will be chosen at random from a hat. Instead of the winner-take-all procedure employed by every other state, Maine and Nebraska use this authority to award one elector to the popular vote winner in each congressional district.
Eastman and other allies of the former president have asserted that this near plenary power gives state legislators a clean check to overturn election outcomes in their own states. In other words, even after voters chose Biden, Republican state legislatures might gather and give electors to Trump's list. Some have gone so far as to claim that legislatures can cancel their 2020 electoral votes now, long after the election has ended and Biden has taken office. That is obviously ludicrous, and Republican legislative leaders in states like Wisconsin, to their credit, have rejected it.
Eastman's argument rejects the plain wording of the Constitution in an attempt to empower state lawmakers beyond their constitutional boundaries, even in its more limited form spanning the period between Election Day and Inauguration Day. While state legislatures have control over how electors are chosen, Congress has control over when they are chosen. "The Congress may choose the time of elector selection," Article I states plainly. The first Tuesday after the first Monday in November, sometimes known as Election Day, has been designated as such by Congress.
Election Day is the deadline for states to choose and implement their presidential elector appointment process. After that, state legislatures are powerless to intervene. The state law election procedure is followed, and the results are validated by authorities from the executive branch of the state, with any disagreements being resolved through the courts.
Legislators cannot look at the election results, determine they don't like them, and then alter their minds about allowing the public to vote. On top of offending any sense of fundamental fairness, this would contradict the very point of Congress's time-setting power and render it irrelevant. You can't decide how you'll do anything (choose electors) after the time limit has passed.
In addition to Eastman's misreading of the Constitution, proponents of state legislatures' claimed power have cited 3 U.S.C. 2. "Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a way as the legislature of such State may command," the section reads in full.
The law on failed elections is designed to deal with a small number of unlikely eventualities. If no candidate received 50% of the vote in a previous election, several states employed runoff elections for president, and the failed election provision was designed to allow for that option. Extreme disasters, such as storms or a significant terrorist attack, that disrupt the election have also been considered. It does not apply in situations where the losing candidate's party simply disputes the election results, especially where the courts have already decided the subject under the state's statutes as they existed on Election Day. In those cases, the state's election has not "failed" to deliver an outcome, as it did in every state in 2020.
In reforming the Electoral Count Act, Congress should tighten the failed elections section to make clear that this deadline extension narrowly applies to only genuine force majeure catastrophes. Congress should also mandate that a state's crisis response standards be established by law prior to Election Day, rather than being chosen on the spot. In principle, a modified Electoral Count Act should include a provision clarifying what is currently in the Constitution: no later than Election Day, each state must select how it will choose its members of the Electoral College. After that date, any legislative tampering shall be treated as null and void in the courts and when Congress gathers to tally the electoral votes, and the controlling statute should expressly state as much.