Legislative Appointment of Electors Would Be Unlawful. And It Won’t Even Work For Trump.

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Just yesterday, I wrote on this site that a state legislature directly appointing presidential electors for Trump against the results of the election would be unconstitutional and, in any event, wasn’t going to happen in Pennsylvania due to the unlikely stand taken by Republican state legislators. But what about states other than Pennsylvania? The state legislatures of the battleground states of Arizona and Georgia are controlled by Republicans too, as are important Biden wins in Wisconsin and Michigan.

Even if those state legislatures took the leap, it wouldn’t work to steal the election for the President. 

Part of the story is electoral math. In order to reverse the results of the Electoral College, it wouldn’t be enough to flip Arizona and Georgia — even losing those states, with Pennsylvania in his column Vice President Biden has a majority in the Electoral College. So to make a difference in the ultimate outcome, the state legislatures of other states that Biden won would have to try to appoint their own electors. States like Wisconsin or Michigan, both of which have Democratic governors — which makes all the difference in the end. 

To see why, we need to dive into the details of the Electoral Count Act of 1887 — which addresses how to resolve a dispute about presidential electors in the Electoral College. This problem threatened as early as 1796 and 1800, but a crisis didn’t fully erupt until the Hayes-Tilden election of 1876. In the shadow of the Civil War, three hotly contested states sent multiple slates of electors to Washington. The Constitution (in Article II and the Twelfth Amendment) says that the votes in the Electoral College are counting in Congress — but unfortunately, it doesn’t say by whom or how to resolve a dispute about the count. The crisis passed only once the two sides reached a political compromise that effectively ended Reconstruction.

After 1876, everyone knew that the country needed some way of resolving that sort of dispute. After a decade of dithering, Congress finally enacted reform in the Electoral Count Act. The critical provision is immensely convoluted, but it is clear enough to tell us that a ploy by the Republican state legislatures in Wisconsin or Michigan won’t work. 

That provision, now codified as 3 U.S.C. § 15, lays out a process for dealing with disputes about electors. Simplified for present purposes, it says that if two slates of electors arrive from a state, then the two chambers of Congress vote separately about which one to count. If they agree, then that slate counts. But if they disagree, then the slate that was certified by the state’s governor counts. And that last part, the so-called governor’s tie-breaker, disarms the threat posed by Wisconsin’s or Michigan’s state legislature directly appointing electors.

Here’s how: suppose one or both of those states’ legislatures purport to appoint a slate of Trump electors and mail that slate to Washington. The Democratic governor, backed by the results of the election and the blatant unlawfulness of the state legislature’s move, sends in his or her own slate of Biden electors. When Congress convenes on January 6 to count the votes, it’s quite likely that Republicans will control the Senate (because the runoffs for the seats from Georgia will be held only the day before) and Democrats will control the House. Supposing that each chamber votes to count the slate for their own party’s candidate, they will disagree and the Electoral Count Act says that the governor’s slate counts. Which in both Wisconsin and Michigan, will be a slate of Biden electors — thus thwarting the state legislature’s attempt to flip the results.

That should be the end of the matter. Congress enacted the Electoral Count Act to deal with precisely this sort of hypothetical, and the law working just as designed would prevent the sort of gamesmanship that’s being floated. Some of my election law colleagues are concerned that the vice president could unilaterally ignore the Electoral Count Act and claim unilateral authority to decide which electors to count. I understand the worry; in 2020, it seems prudent not to rule anything out. But let’s be clear: that would be a raw exercise of power, unmoored from the law. And so far this week, the law seems to be holding. 

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.