Overstimulated Trump-cult civilians are not the only sources of possible election mischief. The acting president is openly telegraphing his intent to try to hijack electors in state legislatures or have the Supreme Court hand him what he fails to win at the polls.
This prospect of rigging the election in state legislatures has been the source of murmurs for months. The acting president is hot to fill the vacant seat on the Supreme Court to ensure enough conservative justices who owe him (in his mind) will settle any post-election litigation in his favor. “I’m counting on them to look at the ballots, definitely, ” Trump said during Tuesday’s debate, seeming to think that falls under the court’s purview.
Greg Sargent points to legal analysis of whether selecting electors falls under the purview of Trump-friendly Republican legislatures. Could this work? Sargent asks:
To be clear, it shouldn’t.
The Constitution does assign to each state the authority to “appoint” its electors, in a “manner” that the legislature “may direct.”
But in a terrific piece, three legal scholars — Grace Brosofsky, Michael Dorf and Laurence Tribe — explain that precedent shows this means the legislature must “direct” how the state appoints its electors by making laws that create and define the process for doing so.
Virtually all states have made laws that provide for electors to be appointed in accordance with the popular vote outcome in them. (Maine and Nebraska do this by congressional district.) Thus, those scholars argue, legislatures can’t appoint pro-Trump electors without making a new law providing for appointment of electors based on legislators’ own will, not that of the voters.
Such a new law would require the governor’s signature. And in three states where this appears most likely to be tried — Pennsylvania, Michigan and Wisconsin — Democratic governors would veto any such effort by GOP-controlled legislatures.
The Supreme Court has upheld the principle that a governor can veto such an effort, those scholars note. In the 1932 case Smiley v. Holm, the court ruled that the Minnesota state legislature could not change election rules unilaterally in the face of such a veto.
This ruling confirmed that for the court, “state legislatures cannot alter” laws governing the selection of electors “except through their ordinary state lawmaking procedures,” which would require a gubernatorial signature and be subject to veto, the scholars argue.
So friendly legislatures can’t do this on Trump’s whim without a new law, no matter how loudly they scream that ongoing counting of mail ballots is fraudulent.
One hitch the legal scholars do not discuss in their focus on what Pennsylvania, Michigan and Wisconsin can and cannot do. North Carolina law provides for its state legislature to select electors in the event no winner has been declared by the “safe harbor” deadline in December.* If for some reason the legislature (currently GOP-controlled) cannot meet by noon the day before the Electoral College convenes, the governor picks. Gov. Roy Cooper is a Democrat.
In exercising their authority under subsections (a) and (b) of this section, the General Assembly and the Governor shall designate Electors in accord with their best judgment of the will of the electorate. The decisions of the General Assembly or Governor under subsections (a) and (b) of this section are not subject to judicial review, except to ensure that applicable statutory and constitutional procedures were followed. The judgment itself of what was the will of the electorate is not subject to judicial review.
Isn’t that special?
* UPDATE: Just to be clear, in a North Carolina presidential race tight enough to trigger recounts (with or without absentee ballots being contested), Democrats should expect teams of Republican attorneys are prepared to challenge in court certification of the election just long enough to trigger the Code Section 163-213 provisions above. Then guess who gets to decide the will of the electorate?
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