More on Alternative Electors

More on why it isn't going to happen.

Let me start with what seems to be a standard, yet needed caveat/disclaimer for all of these conversations about the unprecedented and highly irresponsible behavior of Trump and his enablers: he isn’t going to succeed, but what he is doing is still very, very bad. Put another way, discussions about why he will fail should in no way be construed as being dismissive of his actions.

The ongoing machinations of team Trump to somehow create a conflict over electors is disturbing and subversive. It certainly undercuts trust in our system and it is instructing some nontrivial numbers of citizens to ignore reality. It is also producing a lot of anxiety.

The good news is, it is not going to work, and will end up being a lot of noise, but nothing else.

Keith Whittington, a political scientist at Princeton, explains in this piece from WaPo: Trump’s scheme for state legislatures to overturn the election won’t work .

Federal law specifies that election contests resolved at least six days before the vote of the electors “shall be conclusive, and shall govern in the counting of the electoral votes.” (That deadline is Dec. 8 this year.) Only if the state “has failed to make a choice” through the normal election process may the state legislature direct another manner for choosing the electors.

So for a state legislature to attempt to directly select a slate of presidential electors now, it would need to determine that the state had otherwise failed to make a choice. That could happen if the scheduled election had been canceled due to some natural disaster, or perhaps even if an election contest were still bogged down in recounts and litigation when the date arrived for the presidential electors to assemble and cast their ballots. But neither of those situations apply this year. Theoretically, a state legislature might attempt to cancel the results of a successful election by repealing its earlier statute delegating the selection of electors to the voters and replacing it with a new process. Republicans do control both chambers of the Michigan state legislature, but the Michigan governor is a Democrat and can veto legislation. And Republicans do not have a veto-proof majority.

For anyone who cares, the Michigan statute in question is Act 116 of 1954. Section 168.45 notes that electors are chosen by voters. The next two sections detail the certification and voting processes. I see no way for these to be avoided without breaking the law or changing it. And, as Whittington notes, even if the Republicans tried to change it (which seems to me to be incredibly unlikely that they would even try), the governor would veto the law.

Let’s consider worse cases and think about the other key states.

It is true that Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin all have Republican legislatures.

Michigan is off the table for reasons noted above. Georgia has already certified its results (although one more recount for funsies is coming, it would seem). Wisconsin can be removed as it has a Democratic governor, as does Pennsylvania.

Even if by some bizarre process Arizona’s GOP governor went along with a plot with the legislature prior to the November 30th deadline, that would not be enough electoral votes to scuttle Biden’s win.

Trump doesn’t even have an implausible route to find a way to get the EC to keep him in office. This is especially true given the clown show that is his legal team and their legal arguments.

Of course, all of this underscores, yet again, the nonsense that is the Electoral College. That there is even a crazytown pathway to overturn the clear national (and specific state-level) preferences of the voters is an abomination. These machinations are only possible because the constitutional power to elect the president belongs to the electors and not the voters of the United States. Let that sink in yet again.

If team Trump could get alternate electors installed in enough states, it would only be by literally overturning the will of the voters in those states.

Moreover, the fact Biden has won at least 6 million more votes than Trump, and we can still be having these conversations is utterly absurd, and yet here we are.


A side note that often comes up when some seek to defend the EC: what if we had to have a recount? Wouldn’t that be a mess? Well, first, recounts only happen with truly close elections. Standards vary, but let’s say it needs to be less than .5%–that is a highly unlikely gap at the national level. Depending on how the rule was written, even 2000 would not have qualified for a national recount under that standard. Gore won the popular vote by .5%

Second, if states can do the initial count, they can do a recount. Georgia has already done one recount and will, as noted, likely do another before the deadline. And you can still use the states as the units of counting and recounting under a truly national popular vote. Indeed, given that elections are administered at the state level, I can’t imagine that we wouldn’t continue doing so if we ever had the wisdom to do away with the Electoral College

FILED UNDER: Campaign 2020, Democracy, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Is there no way to sanction the lawyers that are bringing these frivolous lawsuits?

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  2. Sleeping Dog says:

    There doesn’t seem to be much enthusiasm among R legislators to overturn any states’ popular vote. The odd moron, yes, but not among leadership or R governors.

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  3. CSK says:

    @Sleeping Dog:
    Yesterday on Newsmax Sidney Powell accused Brian Kemp of being in the pay of Dominion. I wouldn’t be at all surprised if this didn’t have the effect of turning Kemp against Trump. Way to go, Sid.

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  4. Sleeping Dog says:

    @CSK:

    Sydney has crossed the line from conspiracy theorist to batsh!t crazy. Even at American Greatness they are asking to see the goods, even though the agree with the general premise.

    When I worked in mental health, there were actively psychotic, paranoid schizophrenics that were less delusional than she is. In fact I’d offer that if she walked into a mental health center with her tale, they’d be evaluating her to understand if she was a danger to herself or others, before calling someone who could take responsibility to see her home safely.

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  5. Mr. Prosser says:

    This post allays a lot of my worries I mentioned in your post yesterday regarding the actions of the MI lawmakers, thank you.

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  6. gVOR08 says:

    I like your phrasing that GA is doing a second recount for “funsies’.

    Alito has in a dissent emphasized that he feels the Constitution gives the state legislature, and only the legislature authority over elections. Bush v Gore’s ostensible non-precedent included prioritizing deadlines over an accurate count. We have the GSA Administrator simply refusing to do her clear duty under the law, and getting away with it so far.

    As I understand it Monday is the deadline for a four man board in MI to certify the election. If the two Republicans simply dig in and refuse they might be able to delay certification until the deadline for the EC. The lege could declare by simple majority the election is null and void. They could select GOP Electors or just leave it undecided. The governor would veto and the Rs don’t have a 2/3 majority to override. The GOPs would claim it isn’t subject to veto and put it into the state courts and then to the Supremes, where Alito, perhaps speaking for at least four other Justices, has said he may not care what the governor and state courts do.

    Will they try it this year? No. It would at best reduce Biden’s EC margin in return for a firestorm. Would they try it if they had four years to set it up, and if the EC hinged on MI? They would be constrained by their ethics and dedication to democracy. Which is to say they’d do it in a NY minute.

    In his recent public comments Alito came off as a complete RW nutbar. I have little more confidence in Amy CB, Kavanaugh and Gorsuch and less in Thomas. The system is not designed to withstand public officials simply refusing to do their clear duty. We need to change that, but I’m not sure how if you can’t count on integrity from judges and the DOJ.

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  7. @gVOR08: Agreed about how Alito has sounded of late.

    And like I said: it is possible to game out some crazypants scenarios, and again it just shows how utterly absurd the Electoral College is.

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  8. Michael Cain says:

    @gVOR08:

    As I understand it Monday is the deadline for a four man board in MI to certify the election. If the two Republicans simply dig in and refuse…

    The legal analyses I’ve seen all seem to say the same thing: there’s no legal basis for the board to refuse to certify. Their job is to add up the numbers from the counties as necessary and announce the results. The SoS can go to court (it’s happened before, apparently) and get a writ of mandamus to compel them. If they still refuse, they can be found in contempt and jailed. If that’s still not enough, the governor has the authority to replace them for failure to perform their duty. Michigan law clearly states that an audit can be done only after the vote is certified.

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  9. David S. says:

    Saw a news item this morning that Chris Christie has spoken up against Trump, so that’s another straw.

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  10. CSK says:

    @David S.:
    Christie called Trump’s legal team “a national embarrassment.”

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  11. Scott F. says:

    Granting all the absurdity of the Electoral College that Steven has so thoroughly brought to light here and throwing in the other anti-democratic tactics that the Republicans have increasingly deployed of the last several decades, I can’t help but think whether any of that would matter if the country wasn’t so screwed up culturally.

    How does any system of government consistently and persistently withstand the darker strands of the American character – the taken-to-the-extremes individualism, the racism bred from our history of slavery, the gun fetishism, the ever-present traits of facisim that Kingdaddy wrote of the other day?

    I’m actually encouraged somewhat that Trump and the GOP’s various plays won’t end up working and it’s not for lack of trying. Trump clearly would choose personal power over country himself, while the GOP is showing they would go along with despotism as long as the despot is one of theirs. But it would appear you need all 3 branches to pull off a coup, so Checks and Balances is working just a little bit.

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  12. gVOR08 says:

    @Michael Cain: I believe that’s all correct. But if RW nut job Board members get good Republican election lawyers, not Trump’s sort of crew, could they drag it out past the deadline for the EC? I believe Dr. T said Dec 8, two weeks from the Monday deadline for certification. Especially if they hit a Federalist Society approved, Bar Association reject, judge along the way. In Bush v Gore the Supremes decided a deadline was more important than letting the process play out.

    I said it wouldn’t happen this year. But I wouldn’t be surprised if state level Republicans start looking for manipulable RW nut jobs for Boards of Electors. Dem leges will be looking to improve election procedures, Reps, perhaps the opposite. People are saying, “See, the system works.” But it’s working because Biden got large enough margins in enough states. I’m not saying this scenario is likely, but would it not be good project management to guard against it?

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  13. Joe says:

    Moreover, the fact [fill in pretty much anything out of the Republican party this week], and we can still be having these conversations is utterly absurd, and yet here we are.

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  14. Michael Cain says:

    @gVOR08: Maybe. As our hosts here and a number of other people have said, it would take a lot of crazy to start down that route. They would have to believe that at some point in the future they would have an opportunity to steal an important election if they could cheat enough to deliver some aspect of Michigan: EC votes, a Senate seat, whatever. And for some local purpose. Maybe it’s just me, but if I were running for any office in Michigan, what I’d be concerned about is declining from a peak of 19 seats in the House to 13 after the current census. The state’s in serious trouble.

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  15. CSK says:

    Team Trump has dumped Sidney Powell.

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