by Michael C. Dorf
After meeting with President Trump on Friday, the Republican leaders of the Michigan legislature--Mike Shirkey, the State Senate majority leader, and Lee Chatfield, the speaker of the Michigan House--reaffirmed their commitment to following the law, under which the state's Presidential electors will be certified for the winner of the state's popular election. I hope that their statement spells the beginning of the end for Trump's grotesque gambit to enlist Republican-led state legislatures in facilitating a bloodless coup.
However, there are reasons to remain gravely concerned, especially if, later today, the two Republicans on the Michigan State Board of Canvassers accede to their party's outrageous request for a two-week delay in certification of the state's election results based on minor and routine discrepancies fronting for racist conspiracy theories. To be clear, that move would not by itself deprive Joe Biden of Michigan's electors, much less the Presidency, but it would embolden Trump and his enablers. If you give a mouse a cookie, he's going to ask for a glass of milk. If you give a malignant narcissist a two-week delay, he and his brownshirts are going to try to extort (at least) four more years of his destructive reign.
Accordingly, I think it is premature to judge Trump's scheme to steal the election through GOP-controlled state legislatures dead. It therefore warrants continued legal analysis, even as I fervently hope that what I write here ultimately proves to be of merely theoretical interest.
In an essay on this blog on Thursday, Prof Buchanan laid out the steps that would be necessary for Trump's state-legislator scheme to work. Here I want to focus mostly on a legal obstacle to what he identified as the first step, in which a state legislature votes to give its Presidential electors to Trump even though Biden won the state by over 150,000 votes.
As attorney Grace Brosofksy, Prof Laurence Tribe, and I explained in a blog post and accompanying white paper a couple of months ago, the scheme should fail in states (such as Michigan, Pennsylvania, and Wisconsin) with Democratic governors, because they have the power to veto any bill from their GOP-controlled legislatures purporting to change the manner in which a state chooses its electors. I stand by our analysis, but I acknowledge that it relies in part on a precedent--the 1932 SCOTUS decision in Smiley v. Holm--that it is possible to imagine five current justices seeking to overrule. As I noted in an essay on the eve of the election, recent statements by various justices flirt with a badly misguided view that state legislatures can act completely independently of their state constitutional requirements for lawmaking when Presidential elections are involved. I continue to think that view is seriously mistaken for reasons I and others have articulated. However, even if we accept the broadest understanding of the state-legislatures-alone theory, a state's designation of its electors for the loser of the state's election would still be illegal.
The state-legislatures-alone theory rests on the following language from Article II, Section 1 of the Constitution: "Each state shall appoint, in such manner as the Legislature thereof may direct," the state's Presidential electors. The Brosofsky/Dorf/Tribe analysis says that text, history, logic, and precedent all indicate that state legislatures "direct" the manner of appointing electors by legislating in accordance with state lawmaking procedures. The broadest version of the legislatures-alone theory says no, "Legislature" as used here excludes the state's governor and any other actors typically involved in enacting, implementing, enforcing, or interpreting the state's laws. Contrary to our analysis, let's suppose purely for the sake of argument that that's right. Even so, that's not the only relevant constitutional language.
Article II, Section 1 of the Constitution gives states the primary responsibility to choose the manner of appointing electors, but it gives Congress the power to direct the timing thereof. It states: "The Congress may determine the time of choosing the electors . . . ." Congress has exercised that power. A federal statute provides: "The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President."
Thus, if a state decides that it wants to have its legislature simply choose its Presidential electors, it can do so, but only if it does so before Election Day, which was November 3 this year. Needless to say, no state legislature chose its Presidential electors directly on that day. Every state and the District of Columbia chose its electors by a vote of the state's People (with every state other than Maine and Nebraska doing so on a winner-take-all basis). By virtue of a clearly valid Act of Congress enacted pursuant to Article II, Section 1, it is now too late for a state legislature to decide to change its manner of appointing electors.
To be sure, Congress has also legislated for a contingency. Right after the Election Day provision, the U.S. Code adds: "Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct."
It's worth noting preliminarily that this language does not simply empower a state legislative majority to appoint electoral slates over the objection of a state governor. By mirroring the language of Article II, Section 1, it authorizes the state legislature to enact legislation directing an alternative manner of selecting electors should there be a failed election. Under the Brosofsky/Dorf/Tribe analysis, that means that Democratic governors in states with Republican-controlled legislatures would have veto power over any backup plan. However, as noted above, I'm assuming arguendo that the Supreme Court would adopt the aggressive version of the legislatures-alone theory, and so I'll assume further (and also arguendo) that this misguided theory applies to the statutory language as well as to the constitutional language.
Even so, the statute does not allow state legislatures to appoint a slate for their favored candidate after there has been a popular election on Election Day, unless that popular election "failed to make a choice." Exactly what qualifies as failing to make a choice? The issue was partly litigated in a lower court but not resolved in 2000, so there are no authoritative cases. Nonetheless, we can imagine examples. Suppose state law provides that the state's electors go to the slate that wins a majority but that the presence of a third-party candidate results in no such slate winning and that pre-existing state law prescribes no backup plan. Or suppose that a state uses paper ballots that are tallied in a central location but that a fire destroys most of the ballots before they can be tallied. Under such extreme circumstances, the state could be said to have had an election on Election Day but failed to make a choice.
Yet while we can imagine various such unlikely scenarios that would trigger the failed-to-make-a-choice provision, here's the crucial and obvious point: A state in which there has been an election that resulted in one candidate winning by over 150,000 votes did not fail to make a choice on Election Day.
Could widespread election fraud mean that a state failed to make a choice? Perhaps, but for that to be so there would have to actually have been widespread election fraud. Unsupported (and in this instance lunatic) allegations of fraud cannot trigger a state's legislative power to use a substitute mechanism.
Congress could have left entirely to states whether they wanted to permit do-over elections or sham elections or direct legislative choice as the means of choosing electors. After all, Article II, Section 1 says "Congress may determine the time of choosing the electors" (emphasis added). Having chosen to exercise that power, Congress did not leave to the discretion of state legislatures whether to displace the voters' choice whenever they want. Legislative displacement or some other backup arrangement can happen only on condition that the Election Day election "failed." Because no state election has failed, Trump's scheme to have state legislatures appoint Electors is not only appallingly undemocratic but flatly illegal.
For reasons that I won't elaborate right now, the steal-it-through-the-state-legislature scheme is also illegal because a decision to nullify the voters' verdict based on disapproval of their choice violates equal protection. The violation here would be much clearer than the one the Supreme Court identified in Bush v. Gore. Moreover, as a complaint filed by the NAACP Legal Defense & Education Fund lays out, in specifically targeting Black voters from Detroit, the Michigan version of the scheme violates the Voting Rights Act too. Should the putsch continue, I may say more about these additional illegalities.
Before concluding, I want to respond to a concern that various readers have raised in reaction to my solo and co-authored writings on the election. They point out that when I say that the law clearly renders some Trump effort to steal the election illegal, I am not sufficiently reckoning with the possibility that various elected officials and even judges and justices might ignore the law or invent and apply bogus reasons not to follow the law as written and as previously articulated.
These readers have a valid point, especially with respect to elected officials. The acquiescence of so many Republicans in Trump's frontal attack on democracy is appalling.
Nonetheless, I remain hopeful that there are enough true patriots to stop the coup. If Shirkey and Chatfield--and their counterparts in other states--remain true to their word, they will be heroes of the American republic. Georgia Secretary of State Brad Raffensperger has already shown heroism. Just three Republican US Senators would be needed to fully reject any bogus slate of state-legislature-appointed delegates, and there already appear to be five: Senators Collins, Murkowski, Romney, Sasse, and Toomey. Whatever very substantial differences I have with them on policy matters, I commend their patriotism and integrity.
That leaves the courts. Here I am cautiously optimistic. So far, state and federal judges have uniformly rejected Trump's claims because they are legally and factually groundless. It hasn't mattered whether the judges are conservative or liberal, Republican or Democratic. The courts have largely reinforced my moderately legal realist views: Often the law contains gaps and ambiguities; when it does, judges' values and ideology can make a big difference; but when the law is very clear, judges typically follow it.
Does that mean I have complete confidence that the political and legal system will ultimately stop Trump's attempted coup? No. I remain extremely concerned, because even a five percent chance or, for that matter, a one percent chance, of the permanent destruction of American constitutional democracy warrants vigilance.
My expertise as a legal scholar qualifies me to analyze the law. I have done that and will continue to. Whether the relevant actors who hold power follow the law is ultimately a question for them--and for the People who may or may not hold them accountable through the ballot or whatever alternative means remain available once dictators are permitted to cancel the results of elections.