In recent weeks, there has been a proliferation of articles on how President Trump could effectively change the rules after the election if it appears that he is likely to lose. For now, I am putting to the side the possibility of an actual coup in which he prevents the new Congress from meeting and certifying a Biden-Harris win or prevents Joe Biden from taking the oath of office after being certified as the winner. I just don’t see the circumstances in which members of the military or the Secret Service or the D.C. police force would participate in such an extreme stance. So I will limit myself to an attempt to change the legal winner of the election.
For federal offices, including the president, there are three main sources of law governing the election of such officials– the Constitution, federal statutes, and state laws (which can be the state constitution, state statutes, or state regulations).
Most of the arguments for legal manipulation are based on past history and a misreading of the Constitution. There are two key provisions in Article II of the Constitution. First, the electors are chosen “in the manner that the Legislature shall direct.” The key thing about this provision is that it says that the Legislature directs the manner of choosing the electors. It does not say that the state legislatures get to choose the electors. While, in the early days of the country, some legislatures opted to have the legislature actually choose the electors. that was because the legislature opted for that mechanism. Today, every state has opted to choose the electors through a popular vote. While the legislatures could theoretically change the manner of choosing electors, I will get back below to why this will not happen.
The second key provision — and the one that is most troublesome for the “use the legislatures” strategy — states “Congress may determine the Time of chusing [sic] the Electors.” As discussed below, Congress has acted under this provision.
Finally, the Twelfth Amendment leaves it to Congress to count the votes from the electoral votes from the states. There is no provision in the Constitution for a federal election contest.
We then turn to federal statutes. As noted above, the Constitution grants Congress the authority to set the date of election for electors. It also implicitly leaves it to Congress to determine which sets of votes from a state is valid if it receives two sets of votes. Congress has included in Title 3 of the U.S. Code (the title governing the President) several provisions related to the election of the President. The most important for this discussion is Section 1. Under Section 1, each state shall appoint its electors on the first Tuesday after the first Monday in November. That is the election day for every other office, including — in many states — the state legislature. I have serious doubts that many state legislatures will convene on election day for the purpose of taking the choice of President away from voters. Most legislators are very committed to winning their own election, and are not likely to do anything this controversial before the election. Now Section 2 does include the possibility of appointing electors on a later date if the state has failed to properly choose electors on election day, but that would require a finding as a matter of fact and law that the selection of electors on election day was invalid.
Next, Section 5 — typically called a “safe harbor provision” — establishes a default rule for determining which slate of electors is the valid slate if there are competing slates. Under this provision, if a state has established state laws for choosing electors and resolving election disputes related to electors, the state law determination of the legal slate of electors is controlling as long as the state law dispute is resolved at least six days before the date set by Congress (in Section 7) for the meeting of electors.
Next, Section 6 requires the “executive” in each state to send to the U.S. Archive a certificate of ascertainment, prior to the meeting of the electoral college, stating the name of the duly-chosen electors. In other words, this section would require the cooperation of the executive of each state in any attempt to do an end-run around the election results.
Finally, Section 15 (and the following sections) provide for the counting of votes. Under that provision, the new Congress meeting in January counts the votes on January 6. At that time, there is a presumption in favor of the votes cast by the individuals determined by the state to be the valid electors under Section 5. If there is a dispute that is not resolved by Section 5, it has to be resolved by both houses meeting separately. While the Senate may still be too close to call, it is likely that the House will have a majority of Democrats. (There is almost no scenario in which Biden is the proper winner of the election but the Republicans regain enough seats to have a majority in the House.) While Section 15 covers a variety of different circumstances, almost all of them include some presumption that applies if the two houses are unable to agree. For the purposes of this post, the bottom line is that, if the executive, signs off on the electors chosen by the popular vote, both houses would have to vote in favor of rejecting that slate before the votes from a legislative slate could be counted. If the House supports the popularly elected slate, that would be the end of the issue. Furthermore, Section 17 limits the debate in each house over which slate to count to two hours; so the Senate would not be able to filibuster.
Finally, like everything else related to elections, there are the state law issues. Every state — with some slight variations in Maine and Nebraska — has directed that the manner of choosing electors will be by the popular vote in that state. Furthermore, state law governs the conduct of the election including when mail-in/absentee votes must be received and what supporting information is required for those votes to be valid. Additionally, state law dictates when the local election authorities must certify their results to the state election authority and when the state election authority must certify that result. State law also dictates who is the “executive” for the purposes of Section 6. Finally, state law governs election contests and the determination of disputes about which candidate has won the election.
Now, there are two potential avenues proposed for Trump to steal the election. The first avenue is by the state legislatures in key states convening after the election to choose a new slate of electors on the theory that the elections are inconclusive. There are several problems with this theory. First, in every close state that voted for Secretary Clinton in 2016, the Democrats are the majority in at least one house. So even if the Republicans tried this strategy, they would be limited to states that went for Trump in 2016 like Pennsylvania, Wisconsin, Arizona, North Carolina, Florida, Ohio, Michigan, and Texas.
Second, as noted above, the legislature directs the manner of choosing electors. In every state, this direction has been by state statute. Of the eight states listed above, Arizona, Florida, Ohio, and Texas have a Republican governor. So any statutory change would be vetoed in Pennsylvania, Wisconsin, North Carolina, and Michigan. (And might be vetoed in some of the other states.)
Third, in many states, the dates of legislative sessions are set by law. In theory, the Arizona, Florida, and Texas governors could call a special session after the election to appoint electors. In Texas and Florida, however, the counting process starts early enough that we will likely know the winner by the day after the election unless it is very, very close. In Arizona, it may take several days, All three states are very experienced with mail-in and early votes. In short, if any of these three states are key to the election, the result is likely to be known before any special session could convene. Of the states with Republican legislative majorities noted above, only Ohio, Pennsylvania, and Michigan are currently in regular session.
Finally, even if the legislatures do attempt to intervene, that will not stop the count from continuing. There will be a winner certified by state law before the cut-off date set by Section 5. And that slate will be presumptively valid under Section 5 and Section 15.
The alternative route, and the more likely to be taken, will be fighting over the count. The problem with this strategy is that COVID 19 has moved most of this fight into the pre-election period. There may be an election contest in close states after the fact, but many of the state courts in the too close to call states have already been asked to decide the ground rules for the count. There is a chance that we may see the type of Gucci shoe riots that we saw in Florida in 2000 in an attempt to block the count. But most states have learned from 2000. My expectation is that we will see adequate security at counting facilities to allow the count to proceed and be completed.
Finally, there is the suggestion that the Supreme Court could decide this election. I am dubious about that for several reasons. First, and foremost, none of the justices on the Supreme Court are Trump loyalists. There will be six Republican justices (assuming Judge Barrett) is confirmed, but there loyalty is to an agenda not to Trump the person. (As we saw this last term when both Justice Gorsuch and Justice Kavanaugh voted against Trump in the subpoena cases.) While they would probably prefer a Republican President (even President Trump) over a Democratic President, they know that their agenda can survive a Democratic President. But their agenda requires public faith in the judiciary as being mostly non-partisan. (For similar reasons, I also expect the legislative strategy to go nowhere. The legislators are personally loyal to themselves not to President Trump. Even if they can produce favorable districts in 2021 that survive court review, intervening in an election to take away the choice of the president from their voters will negatively impact their re-election chances in 2022 as Trump supporters will have short memories but Trump opponents will have long memories.)
Second, the law is not on Trump’s side. Five years ago, the Supreme Court looked at Arizona’s redistricting law. Under that law, district lines for Congress are drawn by a redistricting commission. At issue in that case was whether that law was consistent with the “Time, Place, and Manner” clause in Article I which like Article II authorizes the state “legislature” to establish the law about the election of members of the House of Representatives. The 5-4 majority found that legislature in Article I referred to the law making power of the state not to the actual body that the state calls its legislature. While both Justice Ginsburg and Justice Kennedy are not longer on the court from that five-member majority, Chief Justice Roberts has shown a willingness to be bound by recent precedents. Additionally, in this year’s faithless elector case, all nine justices deferred to state law over the selection of electors.
Furthermore, while only Justice Breyer and Justice Thomas remain from the 2000 election, the majority opinion in Bush vs. Gore relied heavily on Section 5 and the desire of states to take advantage of the safe harbor provision by relying in the rules as they existed on election day. In particular, Justice Thomas joined Chief Justice Rehnquist’s opinion which placed a great emphasis on state law as it existed on election day. While Justice Thomas could try to walk away from that opinion, it would look highly political, and the three mainstream conservative justices have tried their best to appear non-political.
The other thing to note about the Supreme Court’s involvement in the 2000 election was that the main issue in the case was the Equal Protection Clause. And Justice Breyer’s partial dissent noted that there were potential equal protection issues in the Florida Supreme Court’s partial recount. But the first opinion (arising from the earlier dispute involving local canvassing board) emphasized that there were some state law questions. Likewise, here, most of the issues will be a question of state law — how has the legislature directed that the electors be chosen and how are dispute about that election to be resolved.
It is possible that the Supreme Court could get involved again, but the 2020 election will be different from the 2000 election. States have adopted standards for recounts and election challenges that should eliminate the equal protection issue that controlled in 2000. And, in this case, Section 5 will weigh against seating a slate chosen by the legislature after the voters have already selected a different slate.
Finally, while we only have slightly under two years with the Justice Kavanaugh on the bench (and some cases have weird splits), the general tendency on cases with a conservative-liberal split is for the three mainstream conservatives(Roberts, Gorsuch, and Kavanaugh) to vote together. I counted a total of 69 cases that generally had a liberal-conservative split (although sometimes that split was Justice Ginsburg or Justice Sotomayor or Justice Thomas in a lone dissent). Of those 69 cases, the conservative justices voted the same way in 43 cases. Of the twenty-four in which the three justices splite, it was pretty balanced with two of the three voting with the liberal bloc 12 times and two of the three voting with the conservative bloc 14 times. Of course, it was also close to 50-50 in terms of all three voting with the extreme conservatives (32 times) and at least one of the three voting with the liberals (37 times). And of the split votes, there was not an appreciable difference in the likelihood of any of three conservative justices to go in favor of the liberals or in favor of the extreme conservatives. In short, Justice Gorsuch and Justice Kavanaugh are, at most, only slightly more conservative than Chief Justice Roberts.
With the caveat that we are reading tea leaves about what will be novel issues, I just don’t see a situation where the justices on the Supreme Court (or for that matter) state legislators will break the rules to give Trump a win that he does not get on election day. Now, if disputes come up in the courts about how to count ballots or what ballots are valid, I would not be shocked if state court judges and the U.S. Supreme Court interpret the existing rules in a way that makes things harder for people to vote. But if the certified election results show that Joe Biden won over 270 electors, I just do not see the Supreme Court stepping in and preventing Congress from accepting those results instead of any post-election attempt to change the method of selecting electors.
Of course, as even Eric Trump admitted, the best way to avoid this dispute is to grant the prayers of election administrators and have a clear and decisive result in the election. Trump’s ability to cast doubt on the results — a necessary precondition to getting anybody to go along with the type of shenanigans being discussed — depends on the election being too close to call on election night and days or weeks passing before a winner is known in some of the crucial states.
