Red State Legislatures Cannot Cancel The Upcoming Presidential Election
// 3/17/20 //
The coronavirus outbreak has many worried about the state of our democracy. Already several states have pushed back the dates of their primary elections. That’s prudent, but some folks are now worrying that President Trump could try something much more impactful: cancelling the Presidential election, either by simply staying in power beyond his appointed term or by having Republican-controlled state legislatures abolish voting and instead simply appoint presidential electors who will vote for him. I’m here to reassure you: not only will neither of these scenarios happen, but, legally, neither can happen. An election can’t just be cancelled by Trump, because there is no federal election for President; instead, it’s 50 state elections. And even if some red states tried to appoint presidential electors without holding a vote, there are enough state laws on the books—enforced by Democratic governors—to prevent Trump from obtaining an electoral college majority this way.
The first scenario, where there’s no election and so Trump just gets to stay longer, is impossible. The President cannot cancel the election under the Constitution or under current federal statutory law. The 20th Amendment says that the President’s term terminates automatically at noon on January 20th, every four years: January 20, 2021 for Trump. And if there has been no election, then the previous President and Vice President do not just get to stay in office indefinitely. Instead, the Constitution says that “Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified,” and Congress has already done so (in 3 USC § 19): if no one has otherwise qualified to be president, the acting President would be the Speaker of the House, presumably Nancy Pelosi. Given clarity of the Constitution is and the strength of the norm of peaceful transfer of power every four years, if Trump attempted to overstay his welcome without an election, it’s difficult to imagine the courts, including the Supreme Court, or perhaps the military, siding with him and letting him just become a dictator.
It’s hard to imagine how we could even get to that point, because the President also has no way to unilaterally cancel an election. Instead, as many know, the President is actually selected by the votes of 538 presidential electors, who vote this year on December 14. Those presidential electors, in turn, are appointed on a specific day: currently the Tuesday in November that falls between November 2 and November 8; this year, that’s November 3. That November 3 popular vote is actually 50 different state votes plus a vote in the District of Columbia, so the President cannot simply wave a pen and be rid of those. If the states want those to happen, they will happen.
But wait. What if the states don’t want those elections to happen? Could enough red states just abolish elections and appoint electors who would automatically re-elect Donald Trump? Some think this legally could happen, but I disagree. There are state laws providing for election of electors by popular vote, and those will be nearly impossible to overturn, especially in states with Democratic governors.
Let’s first outline why people think this worst-case scenario could happen. In one prominent version of the argument, Mark Joseph Stern at Slate points to Article II of the Constitution, which says that each state “shall appoint” its electors “in such manner as the Legislature thereof may direct.” Stern argues that this provision means that “it is perfectly constitutional for a state legislature to scrap statewide elections for president and appoint electors itself.” Republicans currently control the legislatures in 29 states with 302 electoral votes, and they need only 270 votes to win. Thus, nothing would prevent these states from each deciding that there should be no election. Instead, they’ll just appoint a slate of Republican electors who would vote for Donald Trump, and he’ll get another term.
Turns out it’s not as easy as Stern makes it seem. The biggest practical thing standing in the way of this plan are existing state laws and the eight Democratic governors in states with 86 electoral votes, which is enough to deprive Trump of a majority of electoral votes. Those governors can thwart this effort simply by enforcing their existing laws. That is, as Professor Ned Foley explains in a law review article going through a hypothetical contested 2020 election, there is a strong argument that the popular vote “method of appointing electors cannot be undone except by a new state statute enacted using the same ordinary methods of legislation.”
No new statutes would be passed. If there is a coordinated effort by Republican legislators to abolish Presidential elections, Democratic governors will stand up for it and will refuse to sign any bill abolishing an election. That should end the attempt to abolish elections in its tracks.
Presumably, Stern thinks that governors’ protests wouldn’t matter. Though he doesn’t explain this in detail, his view appears to be that state legislatures acting alone have the power to appoint electors. But this argument assumes legislatures are acting on a blank slate, as they were in early America. They are not: previous legislatures have already provided for a manner of appointment, and those are now enshrined in state law. Legislatures must follow the procedures of state law to take back the unilateral power they perhaps originally had.
Take Pennsylvania as one example, since it has 20 electoral votes, a Republican legislature, and a Democratic governor. Pennsylvania law says that at the “general election” every four years, “there shall be elected by the qualified electors of the Commonwealth, persons to be known as electors of President and Vice-President of the United States.” I see no argument under Pennsylvania’s Constitution that the state legislature could simply repeal that law without the signature of the Governor (or the override of his veto, which would take a 2/3 majority that Republicans do not have). In other words, under state law, there has to be an election, and electors must be elected with a popular vote. The rules for appointing presidential electors are similar in every other state. State laws providing for elections cannot simply be abolished because the legislature wishes to appoint electors differently.
There is another, less obvious hiccup in the “unilateral appointment” theory. Article II says that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” equal to the number of Senators plus Representatives. Under Article II, then, legislatures may not unilaterally appoint electors—instead, legislatures may choose the manner of appointment, and “states” appoint electors. That gives rise to a credible argument that the state as a whole, including the state executive, must have some sort of role in the formal appointment of electors, even if the Legislature chooses how electors are appointed.
No case has turned on this distinction or explored its contours. But under federal law, it is the duty of the executive of each state—that is, the governor—to send to the federal government the list of appointed electors and a “canvass or other ascertainment” of how many votes those electors received. The legislatures have no right to do this on their own. Presumably, no Democratic governor would comply with its legislature’s unilateral directive to appoint a slate of Republican electors.
Indeed, the legislatures cannot do so without the authority of “state law,” which, to repeat, would require a bill signed by the governor. That is because federal law requires that the ascertainment—that is, the list of how each elector was appointed—be done “under and in pursuance of the laws of such State providing for such ascertainment.” But there are already state laws providing for a method of ascertaining presidential electors, and those laws all provide for a popular vote, not legislative appointment.
Let’s keep going down the rabbit hole, and suppose again that the Pennsylvania legislature tried this extraordinary appointment without repealing the hold law. Presumably, the state would still hold an election; that’s required by state law. But on November 3, Pennsylvania would just pretend the election wasn’t happening and appoint its own slate of 20 Republican electors. We can then assume that the Governor would alsoseek to appoint his own electors, perhaps unilaterally or perhaps as the result of a popular vote in the state or a nationwide popular vote. (Foley’s article, which I saw after I wrote the first draft of this post, walks through what might happen if there were an electoral dispute with competing slates of electors, because the popular vote result is disputed. I agree with much of his analysis, but there are some differences in part because in my hypothetical, there has been no popular vote.)
What would happen next would be the first real test of a law passed in the wake of the disputed election of 1876, so we don’t quite know. That’s the last, and only, election in which America had competing slates of presidential electors from certain states, each of which had claims to be legitimate. But—assuming that the Democrats at least maintain control of the House of Representatives in the next Congress—it would be the governors’ Democratic slates, and not the legislatures’ Republican slates, that would count.
Federal law provides for a special way of counting electoral votes. On January 6, Congress meets and reviews all the certificates of electoral votes it gets. Because of the craziness of 1876, Congress actually specified what to do if “more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate”: Congress should count votes those electors appointed “in the mode provided by the laws of the State.” That’s right: the laws. Laws need the signature of the governor, and are not mere unilateral elector appointments. Moreover, federal law actually defines which specific laws count, and it says to count ones made pursuant to laws validly passed before election day. Here again we see that a state legislature may not exercise a unilateral appointment power in contravention of state law.
But maybe Republicans won’t give up. What if Mitch McConnell and the Senate, which will likely still be under Republican control, want to ignore thatlaw and just vote to accept the Trump electoral votes anyway? Helpfully, that stillwouldn’t be enough, because tie goes to the governors. That is, “if the two Houses shall disagree in respect of the counting of such votes,” then “the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.” In other words, so long as the House remains Democratically-controlled and won’t accept the votes for Trump, then, if the two Houses of Congress split, a Governor’s slate wins. And those would not be the auto-Trump electors.
This process actually makes sense when you think about the structure of the Constitution. A state legislature gets to pick the “manner of appointment,” but the State appoints the electors, not the state legislature itself. A state legislature thus cannot cut out the state executive branch entirely.
The very cynical may be thinking “yeah, but the Supreme Court can just ignore all that and find a way to let Donald Trump become President,” but the chain of decisions that lead to that outcome would be so contrary to public support, and so legally contorted, that I view that as virtually impossible, even with this very right-leaning Supreme Court.
To side with state legislatures who wish to withdraw the right to vote in spite of state law and over the protest of a non-compliant governor, the Supreme Court would have to validate a state legislature’s attempt to appoint its own slate of electors, despite the fact that state laws requireelectors to be appointed by popular vote, AND overcome the fact that federal law makes many of the mechanics of elector appointment the duty of the governors, AND get around the fact that “States”—not “Legislatures”—get to appoint electors. For good measure, the Court would also have to overrule or write around precedent that “Legislature” in the Constitution is often not limited to only the Legislature. And then, finally, if a governor persisted, the Supreme Court would have to require Congress to resolve any dispute in favor of a legislative slate, even though federal law says that ties go to a governor’s slate. And let’s not forget the Court would have to do all this in service of depriving tens of millions of people the right to vote for President, which will surely be very broadly unpopular and condemned widely. Not bloody likely, even for this Supreme Court.
Last, this analysis holds despite the fact that the Supreme Court has said that state legislatures have “plenary power” over the selection of presidential electors. That is, as Stern notes in the Slate piece, the Supreme Court has twice stated in passing that states need not hold a popular vote for President. For instance, in Bush v. Gore, the Court said that an “individual citizen has no federal constitutional right to vote for electors for the President of the United States.” And the Court continued by noting that “the State . . . after granting the franchise . . . can take back the power to appoint electors.” Earlier, in a 19th Century case called McPherson v. Blacker, the Supreme Court had said “the whole subject” of presidential elector appointment is committed to state legislatures.
But none of this implies that a state can ignore its own duly-enacted state law requiring that there be an election. Nor does it mean that the legislature’s exercise of what the Supreme Court called the “appointing power” of a legislature is the equivalent of the enactment of a valid state law.
Last, I’ve here focused on the mechanics of counting votes, but there are still more possible checks on implementing this dark vision of a cancelled election. There is a strong argument that the due process clause prevents state legislators selected several years ago, and with the expectation that there would be a popular vote for President, to unilaterally choose presidential electors two years after their election. (For this suggestion, I thank historian Mike Rosin, who has complied early data about the timing of elections for legislators who chose presidential electors in early America). Moreover, in amendments, including the Fourteenth, the Constitution has made references to “the right to vote at any election for the choice of electors for President and Vice President of the United States.” There is thus a viable argument that the legislatures no longer have the power to withdraw the right, at least under some conditions or from reasons. Or, there is an argument that if legislature do abridge this right to vote, then the state’s basis for apportionment of future House seats and electoral votes would be reduced. These theories have not been tested, but they surely would if a state attempted to abolish the vote on the eve of an election.
But I’m confident we won’t get there. There is a vast amount to worry about today and tomorrow. Trump and Republican legislatures conspiring to give Trump another term without an election should not be on the list.
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Rule of Law Checks & Balances Judiciary Congress Executive Branch Democracy Voting & Elections Removal from Office