Sunday, November 8, 2020

Interesting Quirk of Constitution, Art. 2

Who decides what electors are sent to the Electoral College?  U.S. Constitution, Art. II, sec. 1, cl. 2:

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: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

 I suspect that state law specifies that electors are chosen based on popular vote.  If Republicans had enough votes, they could rewrite the law in emergency session and select the electors as they chose.  Michigan has a Republican majority in both houses but not veto-proof.  Are there any states with Republican supermajorities that are in play?  Could the legislature simply override the existing law and appoint who it wants without revising the statute?  The provision above is not specific as to how it is done.  

Back when U.S. Senators were picked by the legislature and not the people (before 1913), they had unlimited discretion on this matter, and no statute directed their decisions.  This led to the 1859 Indiana "Bogus Senators" situation, where one party refused to show up in the state senate so that there was no quorum; the majority party picked two U.S. Senators anyway and they were seated.  Perhaps a majority of the legislature could simply choose Trump electors, and ignore any existing statute?

7 comments:

Che Dolf said...

I suspect that state law specifies that electors are chosen based on popular vote. If Republicans had enough votes, they could rewrite the law in emergency session and select the electors as they chose. Michigan has a Republican majority in both houses but not veto-proof. Are there any states with Republican supermajorities that are in play?

You don't understand. The U.S. Constitution gives this authority to the state legislature, full stop. Governors can't veto the exercise of this power, and state legislatures are no more bound by laws passed earlier than Congress would be if the issue were a matter of federal law.

ThatWouldBeTelling said...

Nowhere in the Constitution's language you quote does it say the state legislatures need to work with the state executives to fashion how the former determine the slate of electors, so I'd say simple majorities suffice, but who knows what penumbras and emanations the Supreme Courts might find to disagree. The trick, assuming the Supreme Court doesn't fix this, is to find enough Republicans with the courage to do this, which most certainly includes risk of death at the hands of the Left, and of course who aren't so GOPe(stablishment) they want the BAD ORANGE MAN gone as much or more than the Democrats.

Those of us in the relevant states should make it clear to them we aren't going to be voting for them in the future if they sit with folded hands and let this steal go through.

Sigivald said...

Could the legislature simply override the existing law and appoint who it wants without revising the statute?

Yes, I expect so.

But they shouldn't, because that's an awful idea corrosive to governance and public order.

"Yeah, the people of this state voted this way, but who cares? We can do whatever we want!" is ... not a compelling Conservative position on the purpose of the legislature or the nature or democratic institutions, shall we say?

(Practically, also, are there any states with a deep-red Legislature capable of doing so, where the electors aren't already going that way?

The notional and alleged fraud going on is ... not in deep-red states with a GOP lock on the Legislative branch, is it?

And do those legislatures have such disdain for democratic process as to throw away their legitimacy in the eyes of the people by doing this for immediate partisan gain?

I'd be perfectly fine with a Trump win (as I am also not at all bothered by a Biden win, especially withOUT a blue sweep of Congress, which I emphatically Do Not Want) - but not on those terms. I don't want anyone winning at that cost, which would be enormous.)

Clayton Cramer said...

Sigivald: The Michigan Legislature is calling a special session to look into voter fraud. If they find persuasive evidence of fraud, they can just override a fraudulent vote count. I suspect most Republican legislators represent Trump districts. There is no political risk for them. And Republicans have a strong majority. Arizona also a strong Republican majority.

That Would Be Telling: Only matters if the legislature needed to repeal an existing statute on the subject, and I agree with Che Dolf: they can just arbitrarily do so.

Che Dolf said...

"Just read some texts, absolutely real, from a top member of DJT's inner-circle. He said, 'Bannon is right. If we have to, we take it to the legislatures,' going on to mention that '(i)f that doesn't work it becomes a House vote, by state and we win that way,' then saying that the situation is '(s)uper ugly but we have to save America.'"
- @CottoGottfried

(Twitter account of Joseph Cotto and Paul Gottfried)

BFR said...

In answering the question I think that it is important to define terms: Judiciary, Legislature, Executive.

It really is that simple.

Hank said...

Article 2 Section 1 Clause 4: "The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States."

It seems to me that Congress setting the date of selection (election day) prevents the state legislature from coming in on a later date and choosing their own slate of electors.