by Neil H. Buchanan
The Electoral College, it turns out, is not the most undemocratic method by which a president can be installed in office. Unsurprisingly, Donald Trump is now committed to the even less democratic approach of having the House of Representatives choose the 2020 winner.
But wait, you say. Why would Trump want Speaker Nancy Pelosi's legislative chamber, with a clear majority of Democrats, to get anywhere near the election? As it happens, the Twelfth Amendment to the Constitution created a system in which the House could determine who is president, but each state would have one vote. And because the Republicans now have a majority of the House caucuses from 26 states, Trump thinks that he has found his golden ticket back into the White House.
That is nonsense, as I will shortly explain. As a threshold matter, however, I should say that it is truly awkward even to appear to be defending the Electoral College. The Electoral College should be abolished, if we want to call ourselves a democracy, but it is the system that we have. Under existing law, the Electoral College determines who is the president. Except in the most unusual circumstances (which will not happen in 2020 in any case), the House does not.
In a new Verdict column that I co-authored with Professors Mike Dorf and Larry Tribe, we explain why Trump's advisors' reading of the Twelfth Amendment is completely wrong. Americans are stuck with the Electoral College (for now), but at least we will not be held hostage to an even less democratic power grab by Trump and his Republican backers.
The Atlantic recently published an article in which Republicans admitted on the record that they plan to have Republican-led state legislatures override the results of their states' presidential votes (by claiming voter fraud or any other convenient cover story). Trump has now been happily talking about this in his super-spreader rallies, openly discussing it as if it is obvious that it will work.
Pennsylvania is the most likely state where this would matter, so that will be my focus here. The Keystone State has 20 of the 538 designated seats in the Electoral College. If, as the polls strongly suggest, Joe Biden wins that state (possibly quite comfortably), the Republicans are planning to say that the U.S. Constitution allows the legislature of each state to appoint the electors, so even though Pennsylvania's voters have elected a Democratic governor and would (under this scenario) have voted for Biden for president, the Republican-dominated legislature could simply say, "No, we're sending 20 Trumpists to vote in the Electoral College."
An analysis here on Dorf on Law last Friday, co-authored by Grace Brosofsky along with Professors Dorf and Tribe, shows why the term "legislature" in the relevant context means "state governments, proceeding under their normal procedures to pass laws." That is, Republican-led legislatures cannot simply ignore their governors' certain vetoes. That analysis is rock-solid, and it ought to end any fantasies by Republicans that they can pull off this stunt.
But Republicans are undeterred. And if they can get the U.S. Supreme Court to defy its own precedents -- which, by the way, would mean directly contradicting the logic that they used to hand the 2000 election to George W. Bush -- then obviously the game is over. The Court could corruptly decide that only the legislatures of states determine the slates of electors, and Trump could win.
If the Court were to do the right thing, of course, it would rule on the merits and say that Biden's electors will be appointed and allowed to vote. But what if the Court instead invokes the Political Question Doctrine (or any other reason not to reach the merits) and simply says that the political branches and the states will have to sort it all out? This is where Trump's team thinks that they can pull a rabbit out of their hat.
Suppose that Pennsylvania ends up with two competing sets of electors, one appointed by the governor in line with the state's actual vote and the other by the legislature based on nonexistent voter fraud. The U.S. Congress is supposed to choose among competing slates, but unless the House flips to Republicans or the Senate flips to Democrats as a result of next month's voting, that would end in a stalemate. Trump's people claim that this would move the decision to the House (under that insane one-vote-per-state rule that weights California and Wyoming, as well as Texas and Vermont, equally).
Why? Because the Twelfth Amendment says that if no candidate has a majority in the Electoral College, the House decides. And if neither of Pennsylvania's competing slates of electors is seated, what happens? In the completely plausible scenario explored in the Buchanan-Dorf-Tribe piece, Biden would appear to have won 288 electoral votes to Trump's 250, but knocking out Biden's Pennsylvania slate -- even without successfully replacing it with 20 Trumpists -- would move Biden down to 268. And because a majority of 538 is 270, Biden supposedly would not have a majority. On to the House!
Except that this is simply not what the Twelfth Amendment says. Instead, it says that "t]he person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed" (emphasis added). Because neither the Biden nor the Trump electors from Pennsylvania will have been appointed, the total number of electors would be 518, a majority of which is 260 or more. Biden, therefore, would still win, 268 to 250.
Let me be clear here. Trump is saying that he can forum-shop (moving the election to the House) simply by getting motivated state legislatures that are dominated by Republicans to knock out their own electoral votes, if those votes would have gone to Biden. And if Republicans running the legislative branches in Michigan and Wisconsin did the same thing, the total of 22 electoral votes in those two states would suddenly disappear from Biden's total, moving the vote to 250 for Trump and 246 for Biden.
I am not, therefore, saying that there are no circumstances under which the numbers could work for Trump, if enough Republicans are able to twist enough rules in enough states. Even there, however, the point is that it is the Electoral College that would have elected Trump, not the House. In a two-person race, the only way the Twelfth Amendment could move the decision to the House is in the case of a tie.
To cover all of their bases, Democrats are wisely focusing on key House races that would allow them to hold a majority of state caucuses, should such a House vote ever occur. That is smart politics, and obviously I hope that they succeed. But to repeat, the key point is that Trump's strategy does not result in the Electoral College being irrelevant. Even with reduced numbers of appointed electors, the president is still determined by a simple majority there.
But what if we said that both slates of Pennsylvania's electors had been "appointed," one by the governor and one by the legislature? I will not spend time here explaining why there is a difference between being "appointed" and "appointed through legal means," except to say that just this morning I appointed myself to be both the King of Canada and the Sultan of Swing. If that is all it takes to be appointed, then all bets are off.
More to the point, consider what happens if we say that governors and legislatures can all appoint slates of electors. Based on our example:
(1) The PA legislature's 20 electors bring Trump up to 270, which is not a majority of a body that now counts 558 electors. Biden 288, Trump 270. The 12th Amendment says that you only go to the House if one candidate has not gotten a majority of the electors appointed. Biden wins, so the election is still not thrown to the House.
(2) What if those Republican-led legislatures in WI and MI get involved, purporting to appoint a total of 22 new Trump electors? New totals: Trump 292, Biden 288. Trump wins, but the election is still not thrown to the House.
(3) But wait, if a governor can appoint one slate and a legislature can appoint a different slate, then California can say that its governor has appointed one slate of Biden electors while the state legislature has appointed a DIFFERENT slate of 55 Biden electors. New totals: Trump 292, Biden 343. Biden wins, and the election is still not thrown to the House.
(4) Seeing what California has done, Texas and Florida now get excited, and so do all-red Alabama, Alaska, Arkansas, etc. But so do all-blue New York, Colorado, Connecticut, etc. I will not do the arithmetic, but even under this absurd race to the bottom, it will almost certainly not end in a tie. Either Biden or Trump ends up with a majority of the purportedly appointed electors, and the decision is still not thrown to the House.
(5) This all shows, however, that neither Pennsylvania nor any other state can decide to appoint more electors than the total of its House seats plus 2 Senate seats. If they are somehow allowed to appoint more than one slate (exceeding their total share of the 538 total), why would any state-level appointer not name as many electors as he wanted? "I'm Pennsylvania Gov. Tom Wolf, and I hereby appoint 20 -- no, make it 60 -- Biden electors, just in case any of them are disqualified." "I'm New York Governor Andrew Cuomo, and I hereby appoint 10,000 NY electors for Biden." "I'm Michael Madigan, Speaker of the House of the Illinois legislature, and we hereby appoint every registered Democratic voter in Illinois -- all five million of them -- as Biden electors."
"Appointed" has to mean more than "someone claims to have appointed me," which merely brings us back to the larger point, which is that Trump's gambit could at most shrink the number of appointees, but he cannot expand it (else states will have appointed more electors than they are entitled to appoint).
Again, this merely forecloses the most undemocratic strategy that Trump's people have come up with (so far). At best, it means that any shenanigans will change the outcome in the Electoral College. And as I said above, if the Supreme Court ultimately says that legislatures but not governors can appoint electors, then it is all over.
But in that case, even having the election in the first place would be pointless, because we know what Republican politicians would do. "North Carolina just went by 60-40 to Biden in the popular vote? No matter. Its state legislature just sent 15 Trumpists to the Electoral College." Elections would be for show and nothing more. Democracy in form but not substance.
All of this means that the Democrats need to be ready to fight it out in various ways. But this is a rare situation in which the language of a constitutional provision is completely clear. Republicans cannot simply send competing slates to the Electoral College and expect to have their votes counted. And even if they could shrink the Electoral College, Trump still has to win there, not in the House.
It is pretty grim that this conclusion -- that a political party cannot simply move a presidential vote into a forum with a guaranteed outcome -- counts as good news. Welcome to 2020.