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The fraud at the heart of the 2020 election has left the American people with only one surefire remedy: They must demand that Republican state lawmakers send pro-Trump electors to Congress.
By now, every Republican in the country knows what happened on Tuesday night. Donald Trump was headed solidly toward reelection. His lead in Wisconsin, Michigan, Georgia, and Pennsylvania was massive and, based on the left’s own models, practically insurmountable.
And then, at 10:30 p.m., the votes simply stopped coming in. From Atlanta to Detroit to Philadelphia, tallies stopped coming out for hours on end. When the tallying resumed, Joe Biden rapidly surged into the lead in key states, with his improvement attributed entirely to the black box of “mail-in ballots.” Already, accounts of fraud and impropriety have started to pile up. Counting resumed, then stopped again, then resumed again. States have taken days to do what could easily be done in hours; often votes keep coming in even as nobody seems to know how many ballots actually remain to be counted. In Pennsylvania, officials are counting ballots that arrive after Election Day with no postmark, even though a postmark is the only means at all of ensuring a late-arriving ballot isn’t fraudulent. In North Carolina, officials have simply announced that they won’t announce any more votes for another week.
North Carolina won't update its total vote count until Nov. 12. The state is crucial for President Trump's path to victory. Here are the @NBCNews numbers. #Election2020 https://t.co/rp4VMjL3cC pic.twitter.com/ae71Rt79ax
— CNBC Politics (@CNBCPolitics) November 4, 2020
This is a disgrace and an embarrassment, of course. But more importantly, it’s an outcome that nobody can trust.
If this continues, and the courts enable it rather than stopping it, then conservatives have only one option for preserving the legitimacy of the election and of the U.S. system of government: They must demand that the legislatures in disputed states step in to appoint their own slate of electors. The legislatures indisputably possess the power to do this.
In our piece Wednesday morning, Revolver described a little-known facet of constitutional law concerning the Electoral College. Article II of the U.S. Constitution describes how the process works:
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. [Justia]
The first line is the critical one. Under the Constitution, authority to appoint electors isn’t generally delegated to the states, but instead specifically is granted to the state legislature.
The 1892 Supreme Court case McPherson v. Blacker dealt with this precise issue. Michigan had passed a law dividing the state into Congressional Districts, and granting its electoral votes to the winner of each individual district. The law was challenged, and the Court upheld it. In its ruling, the Court found that state legislatures have a plenary power to decide their electors; in other words, their authority on this question is complete and unlimited.
The Constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object. [Justia]
McPherson also approvingly cites an 1874 Senate report, which stated quite explicitly that state legislatures have the power to take over the appointment of electors at any time:
The appointment of these electors is thus placed absolutely and wholly with the legislatures of the several states. They may be chosen by the legislature, or the legislature may provide that they shall be elected by the people of the state at large, or in districts, as are members of Congress, which was the case formerly in many states, and it is no doubt competent for the legislature to authorize the governor, or the supreme court of the state, or any other agent of its will, to appoint these electors. This power is conferred upon the legislatures of the states by the Constitution of the United States, and cannot be taken from them or modified by their state constitutions any more than can their power to elect senators of the United States [Revolver note: The power of legislatures to elect senators was later removed via the 17th Amendment]. Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated. [Justia]
The McPherson decision is still standing precedent, and its meaning is clear: The legislature of any state may, at any time, reclaim its authority to appoint electors. Obviously, in a normal election, there is no need to do this. But if the election is going to be otherwise stolen, they have a moral duty to act.
This nearly happened 20 years ago, during the Florida recount drama. With it appearing more and more likely that Al Gore’s legal team would successfully use selective recounts in specific deep-blue counties to flip the state, Republicans in the Florida legislature threatened to directly appoint their state’s electors:
Amid rising partisan tensions, the Republican majority in the Florida Legislature moved closer Monday toward an unprecedented effort to directly award the state’s 25 electoral votes to George W. Bush.
In legal papers filed with the U.S. Supreme Court, the Legislature asserted broad authority to allocate Florida’s electoral votes even if the state courts order further recounts of presidential ballots that could give the lead to Democrat Al Gore.
Speaker of the House Tom Feeney and Senate President John McKay, both Republicans close to Gov. Jeb Bush, signaled Monday that a special legislative committee meeting for the first time today would examine the Legislature’s authority to appoint its own slate of electors.
“If this controversy is . . . unresolved by Dec. 12, the Legislature has the authority and may have the responsibility to step in,” said McKay, who represents a Tampa, Fla., district.
Using even stronger language, Feeney–who served as Jeb Bush’s running mate in his unsuccessful 1994 gubernatorial bid–insisted that the Florida Supreme Court had usurped the authority of the Legislature by permitting counties to conduct manual recounts through Sunday. He strongly hinted that the Legislature may move to name its own electors if the state courts don’t quickly dismiss Gore’s formal contest against Secretary of State Katherine Harris’ certification of George W. Bush as the official winner in the state.
“I do not want to be the House speaker who presides over the undermining of the legitimate powers and authority of the Florida House,” Feeney said.
In a sweeping assertion of authority, the Legislature argues that the “Legislature itself, and not the courts,” can determine when the state has failed to make a “timely” choice of its electors. Most often, legislators have suggested that they would act only if lawsuits challenging the Florida result are still unresolved on Dec. 12, the legal deadline for settling a state’s electoral college representation. But legislative aides say the language in the brief means the Republican majority believes it has the constitutional right to appoint its own electors even if all litigation is settled before then.
And, trying to preempt further challenges, the Legislature asserts in the brief that Congress has no right to object to any slate of electors it might appoint, presumably even if the recounts produce a competing slate of electors for Gore: “Congress has a constitutional obligation to count the votes of any elector who was indisputably appointed by the Legislature,” it argues.
Even more strikingly, the brief argues that if the U.S. Supreme Court says that the Florida Supreme Court was within its authority to extend the deadline for manual recounts, the Legislature could still decide the state court overstepped and use that to justify appointing its own electors. [Los Angeles Times]
The Florida Republicans’ position was indisputably correct under Supreme Court precedent. In its own Bush v. Gore decision, the Supreme Court reaffirmed the clear right of state legislatures to retake their power to choose electors, writing that “The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.”
And that is exactly what should happen now. Republicans have total legislative control in Wisconsin, Pennsylvania, Michigan, North Carolina, Georgia, and Arizona. They have the power to appoint electors in the manner they choose. If the results in their states appear fraudulent, then these Republicans have a moral duty to act. To do anything else is to abandon their voters and unilaterally surrender to the predations of the enemy.
So far, though, they have followed the lead of Republicans in Washington, and done nothing.
Right now, protesters should not be outside the locations counting ballots. They should be outside the homes of Republican state legislators, demanding that they stand up for their own voters.
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