Legislative Appointment Of Electors: An Extreme Legal Move And An Unlikely Profile in Courage

This article is part of TPM Cafe, TPM’s home for opinion and news analysis.

As the President’s path to victory narrows, some of his supporters (including his son, Donald Jr.) are beginning to float one of the most extreme legal moves possible: that a state legislature directly appoint presidential electors, ignoring the people’s votes. That sort of power grab after the election has already been held would be unprecedented and unconstitutional. But legal arguments aside, it would be pointless. There simply aren’t enough states where a state legislature might cross that Rubicon for it to change the results of the election. For that, we can thank an unlikely cast of politicians: the Republican leadership of the Pennsylvania state legislature.

The reason this is even an issue is that Article II of the Constitution says that each state shall appoint its electors for the Electoral College “in such manner as the Legislature thereof may direct.” For over a century, every state’s laws have set a popular election as the “manner” of appointing the electors. That wasn’t always true in the early days of the Republic, however, and in Bush v. Gore the Supreme Court said that the state legislature, “after granting the franchise in the special context of Article II, can take back the power to appoint electors.” But the Court also made clear that once a state grants people the right to vote in presidential elections, that right is “fundamental” and subject to federal constitutional constraints. As the National Task Force on Election Crises has explained, a state legislature trying to yank back the power to appoint presidential electors after an election because it didn’t like the result would probably violate the Constitution.

That legal question, however, is becoming increasingly academic as the votes are tallied in key battleground states. As mail-in ballots are counted in Pennsylvania, the President’s initial margin has gotten narrower and narrower — and seems likely to disappear entirely. With Pennsylvania in hand, former Vice President Joe Biden would have enough electors to win the Electoral College without Arizona, or Georgia, or North Carolina, or Nevada. Of course, the Pennsylvania legislature is controlled by Republicans and the state might therefore seem like fertile ground for an attempt to seize the power to appoint electors directly.

But the GOP leadership in Pennsylvania has decisively disavowed making such a move under any circumstances. State Senate Majority Leader Jake Corman and State House Majority Leader Kerry Benninghoff were clear about that in an opinion piece last month, and reiterated that commitment today. As a result, if Biden wins the most votes in Pennsylvania then the election is over. Even if he loses all of the remaining battleground states. Even if Republicans in Georgia and Arizona jump off the legal cliff and appoint Trump electors, it would be political suicide for naught.

Earlier this week, election law scholar Franita Tolson told the remarkable story of Samuel Randall, the Speaker of the House of Representatives during the convulsive conflict over the presidential election of 1876. Randall, a Democrat, refused to let his own party take extreme partisan measures to try to install their candidate, Samuel Tilden. In 1876, the country was on the verge of plunging back into civil war, and Randall put country over party to pull us back. In 2020, we may have to thank State Senate Majority Leader Corman and State House Majority Leader Benninghoff for their unlikely profile in courage.

Matthew A. Seligman is a Supreme Court litigator and legal scholar in Washington, D.C. He is currently teaching a seminar at Harvard Law School on disputed presidential elections.