US POLITICS: No! – State Legislatures Cannot Overrule the Popular Vote – Opinion

By: Adav Noti | Just Security

One of the very last-ditch efforts Trump proponents have floated since Election Day has been that state legislatures should simply overrule the results of the presidential election in their states.

This proposition is so radically un-American — so contrary to our basic national principles — that in a normal environment, it might simply be laughed off. But 2020 being what it is, the theory has made its way into the pro-Trump social media ecosystem, cloaked in a thin veneer of legalese.

TO BE ABSOLUTELY CLEAR: A state legislature cannot overrule the state’s popular vote for president. This is not a close case.   

By way of background, it is important to remember that voters do not directly elect the president. Rather, under the Electoral College system, the voters choose presidential electors – the members of the Electoral college – from each state, and the electors in turn cast the official votes for president. So, for a state legislature to overrule the popular vote would really mean for the state legislature to appoint the state’s presidential electors, in defiance of the results of the state’s popular vote.

For example, under the proposal that has been floated this week, a legislature in a state where Vice President Biden won the popular vote would pass some sort of law or resolution appointing members of the Electoral College who would cast their votes for President Trump.

The Constitution has two main provisions that govern the selection of presidential electors. FIRST, the Constitution says that each state’s legislature has the authority to determine that state’s manner of choosing its electors. SECOND, the Constitution gives Congress the power to decide when the electors are chosen, which Congress has done by enacting a federal law designating the Tuesday after the first Monday in November — Election Day.

Proponents of the legislative-appointment theory read too much into the first constitutional provision and forget about the second. Although every state has chosen its electors by popular vote for more than a century, most constitutional experts agree that, under the legislature’s authority to choose the “manner” of appointing electors, a legislature could theoretically decide before Election Day to cancel the popular vote for presidential electors and instead appoint them directly.

But Congress’s enactment of a uniform national Election Day under its own constitutional authority — which supersedes any contrary state actions — prohibits the choice of electors from being made based on elections held or laws passed after Election Day.

In other words, under the constitutional timing provision as implemented by federal law, the absolute last day a state legislature could have decided to appoint the state’s presidential electors for this election was November 3, 2020.

ONCE THAT DATE PASSED, THE DETERMINATIVE POPULAR VOTES HAD ALL BEEN CAST, AND THEREFORE THE LEGISLATURE’S AUTHORITY TO CHANGE THE STATE’S MANNER OF APPOINTING ELECTORS IN 2020 PASSED AS WELL.

Recognizing that emergencies can happen, federal law includes a very limited exception to the requirement that presidential electors be chosen on Election Day:

If a state tried to hold an election as scheduled, but that election “failed”, the law allows a state legislature to then create a backup system for choosing electors. Never in American history has this exception been used, so it’s not entirely clear what it would mean for a presidential election to “fail”.

Perhaps a natural disaster that renders parts of a state uninhabitable on Election Day would meet the standard. But regardless of what might constitute a failure for these purposes, it is quite clear that nothing remotely in that ballpark occurred on November 3, 2020.

Not only were there no natural disasters, to the contrary Election Day 2020 was in many ways one of the smoothest-running ever, with turnout apparently setting records across the country. Therefore, the “failure” exception has no bearing on this election.

THERE IS A SECOND, INDEPENDENT REASON STATE LEGISLATURES CANNOT CANCEL THE POPULAR VOTE RESULTS AFTER ELECTION DAY:

To do so would violate the Constitutional rights of the voters. Specifically, the Fourteenth Amendment to the Constitution prohibits states from taking away their citizens’ rights without due process of law. One such right, of course, is the right to vote. And the Supreme Court has made clear many times, in more than a hundred years’ worth of precedents, that the constitutional right to vote does not just mean the right to put a ballot in a box, but also the right to have that ballot counted toward determining the election’s results. For a state legislature to invalidate a popular election would be equivalent to simply refusing to count the citizens’ votes. The Constitution unambiguously prohibits disenfranchising any eligible voters, much less an entire state’s worth.

ONE FINAL POINT BEARS MENTION: What would happen if a state legislature were to violate the Constitution and federal law, disregard court orders, and purport to appoint the state’s presidential electors anyway?

IT WOULD NOT WORK. THE RULES FOR COUNTING ELECTORAL VOTES SPECIFICALLY ADDRESS A SITUATION IN WHICH A STATE SENDS IN TWO SETS OF VOTES:

One set cast by electors chosen on Election Day, and the other cast by electors who claim to have been chosen by some other method. The Electoral College rules specifically give “conclusive” effect to the votes cast by the former — the electors chosen on Election Day — and require that those votes be counted to the exclusion of any others. AN ILLEGAL LEGISLATIVE USURPATION OF THE ELECTION WOULD FAIL.

It is unfortunate that any of this needs to be said. No American official – no one holding public office in a nation dedicated to the rule of law – should ever consider themselves even theoretically empowered to rescind the inalienable sovereignty of the people. Fortunately, our Constitution and our laws are designed to restrain the worst impulses of partisan actors. STATE LEGISLATURES HAVE NO POWER TO VETO THEIR OWN CITIZENS’ VOTES FOR PRESIDENT.

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Comments

  • Clyde Duncan  On November 16, 2020 at 12:49 am

    Bertolt Brecht wrote:

    “The worst illiterate is the political illiterate, he doesn’t hear, doesn’t speak, nor participates in the political events.

    He doesn’t know the cost of life, the price of the bean, of the fish, of the flour, of the rent, of the shoes and of the medicine, all depends on political decisions.

    The political illiterate is so stupid that he is proud and swells his chest saying that he hates politics.

    The imbecile doesn’t know that, from his political ignorance is born the prostitute, the abandoned child, and the worst thieves of all, the bad politician, corrupted and flunky of the national and multinational companies.”

  • Clyde Duncan  On November 16, 2020 at 12:49 am

    …… and the Traitor Trump Supporter!!

  • Clyde Duncan  On November 16, 2020 at 1:24 am

    CAN TRUMP ACTUALLY STAGE A COUP and Stay In Office For Another Term?

    Sam Levine in New York | The Guardian UK

    Joe Biden won the presidential election, a fact that Donald Trump and other Republicans refuse to acknowledge.

    There are worries the president and other Republicans will make every effort to stay in power.

    “There will be a smooth transition to a second Trump administration,” Mike Pompeo, the Secretary of State, said on Tuesday.

    William Barr, the Attorney General, has also authorized federal prosecutors to begin to investigate election irregularities, a move that prompted the head of the justice department’s election crimes unit to step down from his position and move to another role.

    Despite all of Trump’s machinations, it is extremely unlikely he can find a way to stay in power or stage a coup. Here’s an explanation of why:

    DONALD TRUMP REFUSES TO ACCEPT THAT JOE BIDEN WON THE PRESIDENTIAL ELECTION. IS THERE A CONSTITUTIONAL PATH FOR HIM TO STAGE A COUP AND STAY IN OFFICE FOR ANOTHER TERM?

    NOT REALLY. The electoral college meets on 14 December to cast its vote for president and nearly every state uses the statewide popular vote to allocate its electors.

    Biden is projected to win far more than the 270 electoral votes he needs to become president.

    His victory doesn’t hinge on one state and he has insurmountable leads in Michigan, Nevada, Wisconsin, Pennsylvania and Arizona.

    There is a long-shot legal theory, floated by Republicans before the election, that Republican-friendly legislatures in places such as Michigan, Wisconsin and Pennsylvania could ignore the popular vote in their states and appoint their own electors.

    Federal law allows legislatures to do this if states have “failed to make a choice” by the day the electoral college meets. But there is no evidence of systemic fraud of wrongdoing in any state and Biden’s commanding margins in these places make it clear that the states have in fact made a choice.

    IS THERE ANY INDICATION REPUBLICANS IN THESE IMPORTANT STATES ARE GOING TO GO ALONG WITH THIS?

    Shortly after election day, Jake Corman, the top Republican in the Pennsylvania state senate, indicated his party would “follow the law” in Pennsylvania, which requires awarding electors to the winner of the popular vote.

    But on Tuesday, Republicans in the Pennsylvania legislature said they wanted to investigate allegations of voter fraud. There’s no evidence of widespread malfeasance in the state, but the move is alarming because it could be the beginning of an effort to undermine the popular vote results in the state.

    The Republican-led legislature in Michigan is also investigating the election, as are Republicans in Wisconsin. There’s no evidence of widespread wrongdoing in either place.

    IS THIS RELATED IN ANY WAY TO THE LAWSUITS TRUMP IS FILING?

    Trump’s campaign has filed a slew of legally dubious suits since election day. The purpose of these suits appears not to be to actually overturn the election results, but to try to create uncertainty and draw out the counting process.

    Each state has its own deadlines for certifying election results that are then used to allocate its electoral college votes.

    In at least two states, Pennsylvania and Michigan, Trump’s campaign is seeking to block officials from certifying results.

    By dragging out the process, the Trump campaign may be seeking to blow past that deadline and create more wiggle room to second-guess the results.

    Even if that is the Trump campaign’s hope, courts are unlikely to step in, said an official.

    States are going to start certifying their vote totals beginning in less than 10 days, and there is no basis in the claims made thus far for the courts to stop that process.

    SAY THE WORST-CASE SCENARIO COMES TO FRUITION AND REPUBLICAN-LED LEGISLATURES OVERRIDE THE WILL OF THE PEOPLE IN SEVERAL STATES. IS THERE ANY SAFEGUARD TO STOP TRUMP?

    YES. Michigan, Wisconsin, Pennsylvania and Nevada all have Democratic governors who would refuse to approve a set of Trump electors with the popular vote clearly showing Biden winning their state. Instead, they would submit the electors Biden is entitled to as the winner of the popular vote.

    It would then fall to Congress, which is charged with counting the votes from the electoral college, to decide what to do. The law that outlines the process for how Congress should handle a dispute in electors from a state is extremely confusing, but experts believe the slate backed by a state’s governor is the legally sound one.

    A DISPUTE OVER ELECTORS BETWEEN THE US HOUSE AND SENATE IS A WORST-CASE SCENARIO AND THE US SUPREME COURT WOULD PROBABLY BE ASKED TO STEP IN.

    Regardless of however long a dispute is, the constitution does set ONE FINAL DEADLINE.

    Even if counting is ongoing, the president and vice-president’s terms both end at noon on 20 January.

    AT THAT POINT IF THERE ISN’T A FINAL RESULT IN THE RACE, THE SPEAKER OF THE HOUSE – PROBABLY NANCY PELOSI – WOULD BECOME THE ACTING PRESIDENT.

  • kamtanblog  On November 16, 2020 at 2:37 am

    Nice one
    Power to the people
    People power !

    My power comes from God
    My power comes from people/public

    Tried for blasphemy and lost my head …literally !

    King Charles 1st V Cromwell

    History reincarnate

    QED

    Kamtan-uk/ex-EU

  • Clyde Duncan  On November 16, 2020 at 11:46 am

    Ernesta wrote:

    This is very informative and has answered some questions I had, after hearing that a state could appoint their electoral reps.

    Stay safe.

  • Clyde Duncan  On November 16, 2020 at 11:50 am

    Brother Peter wrote:

    Thanks for this information, The noose tightens!

  • Clyde Duncan  On November 16, 2020 at 6:41 pm

    Marion wrote:

    Thank God there are some rules in place, because this man, as his niece said, will stop at nothing.

    The life of Trump is completely built on fraud. He has no shame and should be on some serious prescription medication.

    Have a safe week!

  • Clyde Duncan  On November 16, 2020 at 6:55 pm

    ANALYSIS:
    Biden Can Stop Netanyahu From ‘Doing a Trump’ on Israeli Democracy

    The president-elect should tell Israelis the hard truths they’ve been avoiding over the past four years

    Chemi Shalev | Haaretz

    Just like his election campaign, Joe Biden’s transition to the White House is proceeding apace while keeping a low profile. The coronavirus pandemic is surging out of control in the U.S. and whatever is left of the media and public’s attention is riveted on Donald Trump’s juvenile refusal – or inability – to accept his loss.

    THE OBSESSIVE FASCINATION WITH THE 60-ODD DAYS LEFT UNTIL TRUMP IS SLATED TO LEAVE OFFICE IS OBSCURING THE PROFOUND TURNAROUND EXPECTED IN BIDEN’S FULL FOUR YEARS, IN AMERICA, THE WORLD IN GENERAL AND ISRAEL IN PARTICULAR.

    The powerful shift in policy and outlook between the outgoing and incoming administrations is a direct result of the deep and prevalent polarization in U.S. politics. It is compounded by the fact that Trump and Biden are total opposites in their ideology, values and character.

    TRUMP IS CUNNING, AMORAL AND SELF-ABSORBED.

    BIDEN CHERISHES FAMILY, EMPATHY AND HUMANITY.

    TRUMP, judging by all available evidence, IS SIMPLY BAD, IF NOT EVIL.

    BIDEN IS A GOOD AND KIND MAN AT HEART.

    TRUMP IS AN INDIVIDUALIST, POPULIST AND IN MANY WAYS AN ANARCHIST; HE DREAMS OF MAKING AMERICA GREAT AND WHITE AGAIN.

    BIDEN IS A CREATURE OF THE ESTABLISHMENT, A CHAMPION OF COMPROMISE, AGREEMENT AND TEAMWORK; HE DREAMS OF A MORAL AMERICA, WHICH IS A FORTRESS OF DEMOCRACY AND A LIGHTHOUSE OF LIBERTY THAT SHINES ACROSS THE GLOBE.

    TRUMP has never showed any special interest in Israel, but he is touted by Benjamin Netanyahu and the right wing as its savior and best friend ever.

    BIDEN, who is intimately equated with Israeli affairs and was known as one of its staunchest supporters on Capitol Hill throughout his 47 years in the Senate, is being met with suspicion and apprehension by Netanyahu and the right, HOPEFULLY WITH SOME JUSTIFICATION.

    After all, Biden supports a two-state solution and opposes settlements and annexation. He sees Trump’s abandonment of the Iran deal as a fatal mistake, which only brought Tehran closer to a capability of manufacturing a nuclear weapon.

    Biden wants to repair ties with Europe, re-engage with the United Nations and other international organizations, promote equal rights for women and minorities and shift the U.S. from the back to the front in the fight against global warming.

    In Israel’s Netanyahu-inspired zeitgeist, that makes Biden a naïve, knee jerk liberal who is dangerous by definition.

    Beyond the clear clash between their values, Biden’s inauguration on January 20 will immediately revoke the blanket immunity that Trump gave Netanyahu from international and U.S. criticism. It will erase the cover of legitimacy that Trump gave Netanyahu in Israeli public opinion for his crusades against democracy and the rule of law.

    Throughout his decades of service in the Senate, moreover, Biden acquired a reputation for being a straight shooter who doesn’t mince words with both friend and foe. This is not the vulgar and usually deceitful “dugri” that Israelis adore in Trump, mistaking it for honesty:

    BIDEN tells hard truths, often difficult to digest, because “we’re all a family and that’s what families do,” as he would often tell pro-Israeli audiences.

    Even if he delays engaging with the Israeli-Palestinian conflict for tactical reasons, Biden would do well to remind Israelis that without an equitable solution, Israel is doomed to become either un-democratic or un-Jewish, as he’s often said before.

    BIDEN should explain to Israelis, as he said in his sermon-like victory speech in Delaware last week, that the “battle for the soul of America” – and by inference for the soul of Israel as well – IS ALSO A BATTLE “TO RESTORE DECENCY AND DEFEND DEMOCRACY”, values and terms that have all but disappeared from the Israeli discourse in recent years.

    After beating Trump and hopefully saving U.S. democracy, Biden can show Israelis the way by simply talking to them, without actually “intervening” in their affairs.

    BIDEN might upset Netanyahu and anger Trump’s Israel fan club on the right, but he will inject an immediate dose of life-saving adrenalin to the beleaguered minority that shares his democratic ideals and liberal values.

    If right-wingers like to describe Trump as “good for the Jews”, Biden has an opportunity to prove right off the bat that just like in America, he is going to be “good for Israelis” of all stripes and colors.

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