Republicans will pull out every stop they can get their hands on in 2024
“The Most Important Vote You’ll Cast This Year Will Be for a Politician You’ve Never Heard Of,” reads the teaser on the New York Times landing page. Former U.S. attorney and University of Michigan law professor Barbara McQuade argues that secretary of state elections this fall in 27 states will be key to the administration of 2024 elections. There is a MAGA-style, 2020 election-denying Republican in the hunt in 17. Should they win, they will control the voting process in five crucial swing states:
No elected officials will be more pivotal to protecting democracy — or subverting it — than secretaries of state. While their responsibilities vary from state to state, most oversee elections, a role in which they wield a tremendous amount of power. Secretaries of state own the bully pulpit on voting, and they control the machinery of elections.
They also have a platform to spread disinformation, such as false claims that voting by mail is not secure. A Republican secretary of state could reduce the number of ballot boxes or polling places in Democratic areas and limit staffing to create long lines that dissuade potential voters. They can also refuse to certify the results in particular counties or even the entire state. In a close presidential race, if even one secretary of state in a swing state were to put his thumb on the scale, we could see an election that really is stolen.
Jocelyn Benson, Michigan’s incumbent Democrat, has a 14-point lead over her Trump-backed opponent. Even so, warns McQuade, “that margin is small considering Ms. Benson’s greater name recognition.” Elaine Marshall is not up for reelection here this year, and North Carolina’s secretary of state does not control elections. But if there is a secretary of state race in your state, pay heed.
The Times’ headline above, while instructive, is along with McQuade’s focus too narrow. There will be a lot of down-ballot races with no-name candidates that could have a dire impact on the conduct of 2024 state and federal elections. In particular, on the presidential contest.
Blogger Mary Beth Williams posted an alarming thread on that Wednesday:
I drafted a thread, but then took a break from Twitter due to health/family issues—and then decided, as a Twitter nobody, it didn’t matter. But with the new Eastman disclosures, I feel compelled to document a critical issue that should be addressed before the 2022 midterms. 🧵
TL;DR: After the midterm elections, MAGA-controlled legislatures CAN—and some WILL—end presidential elections in states and choose electors themselves—and it will be upheld by SCOTUS, perhaps unanimously, as constitutional.
My knowledge on this issue is informed by experience as state legislative senior staff, political operative, and state house candidate—on top of a law degree. I checked my work with a close friend—a federal agency attorney, who, like me, is a statutory interpretation wonk.
Even before polls closed, Trump and minions advocated to overturn the 2020 election by replacing electors chosen by the voters with ones appointed directly by GOP legislators. Fortunately, the federal and state courts applied Constitutional guardrails preventing this. But wait:
These courts addressed ex post facto appointing of electors, and held there can be no “do-overs.” See also, Bush v. Gore (2000): “When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental.” But these courts did not rule that state legislatures could never appoint electors themselves. Why? Because that authority is expressly delegated to the legislatures in Art. II, Sect. 1, Cl.2, the “Electors Clause.” law.cornell.edu/constitution/a…
This is the only section of the Constitution that addresses the “manner” in which P/VP electors are appointed. In contrast, the 12th Amendment establishes the process for counting the electors’ votes after appointment. See law.cornell.edu/constitution/a…
SCOTUS has held this power to be exclusively held by the state legislatures, and neither Congress, governors, or courts can override it, even if enshrined in state constitutions.
During the decades after ratification, almost all state legislatures appointed electors by a vote of the legislature—with no pop vote by qualified citizens. SCOTUS, in Pherson v. Blacker, 146 U.S. 1 (1892), upheld the authority of state legislatures to make such determinations:
Currently, all state legislatures appoint electors based on popular vote results in the general election. While a few states tally votes by Congressional district, most have adopted a “Winner Take All” statewide approach. Lyman v. Baker, 352 F.Supp.3d 81 (D. Mass. 2018) explains:
By choosing a popular vote model to appoint electors, states are merely exercising their Electors Clause powers to determine the “manner” by which a partisan slate of electors will be appointed to thereafter vote for P/VP.
However, despite the longevity of state statutes relying on voter preference, SCOTUS has consistently ruled that state legislatures retain their appointment power, and may change the manner of appointment, including reassuming it for themselves. See Bush v. Gore (2000):
There are legal folks who argue that states which require the executive to sign off on legislation will stop this; however, such arguments have never been tested, and with the current SCOTUS, it might be a difficult argument to make. Plus, as noted, precedential cases are mixed.
However, most legal scholars I read found it was likely constitutional, but that it would never happen, mainly due to “optics.” I think we can now agree that “optics” won’t hold GOP back in their pursuit of power. /🧵
Post script: If we want to prevent this from happening in 2024, we Democrats need to not only keep Congress, but win back as many state houses as we can, plus state supreme courts—who will rule on the constitutionality of relevant legislation.
Fred Wertheimer at Just Security is thinking along the same lines. The Electoral Count Act of 1887 (ECA) needs some updating, but Wertheimer thinks the scenario above not politically feasible:
The Constitution gives state legislatures the power to determine the way in which states choose their presidential electors. Thus, Article II, Section 1, Clause 2 of the Constitution provides that:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress […] (Emphasis added.)
Currently, every state legislature in the country has implemented the “manner” of choosing electors by delegating that choice to the voters on Election Day. While it would be constitutional for a state to revoke that delegation and retake the power to name presidential electors, this is not politically feasible.
Wertheimer provides backstory to why this is before pointing to “a gaping loophole” in the Presidential Election Day Act of 1845 (1845 Act) by which state legislatures might still wrest the choice of electors from voters. “The 1845 Act gives a state legislature the power to choose presidential Electors after the election by declaring that the voters in the state ‘failed’ to make a choice on Election Day.”
Wertheimer elaborates:
In the early morning of Wednesday, Nov. 6, 2024, the Associated Press declares that President Joe Biden has narrowly won the elections in Arizona and Pennsylvania in tight races against Republican candidate Donald Trump. This gives Biden the electoral votes he needs to defeat Trump, in a repeat of the 2020 presidential election.
But, a week later, the GOP-controlled state legislatures in Arizona and Pennsylvania meet in special sessions and, citing the 1845 Act, pass resolutions declaring, without grounds, that there was widespread voter fraud or that there were other voting problems in their states and therefore the voters “failed to make a choice.”
The two state legislatures then swiftly pass laws which provide that the legislatures shall appoint the presidential electors. This is in accord with the 1845 Act and its exception that provides that following a “failed choice” by a state, presidential electors will be appointed in the “manner as the State shall by law provide.”
The Arizona and Pennsylvania legislatures proceed to name the Trump presidential electors to represent the states in the Electoral College overriding the choice of the voters in their states, giving Trump the votes he needs to win in the Electoral College, and making Trump, not Biden, president.
There’s more. Point being, Republicans will pull out every stop in 2024, as they have already in the courts, and having learned what did not work in 2020. Adhering to norms and traditional interpretations of set law are out the window. The courts are no protection.
Key to making Coup 2.0 work will be control of state legislatures in red and battleground states. So, while you are watching what happens in congressional and statewide races, DO NOT lose sight of what Republican control of your state legislatures can mean in 2024. Volunteer and donate to those no-name Democrats running for state legislative seats where you are.
“The Most Important Vote You’ll Cast This Year Will Be for a Politician You’ve Never Heard Of”
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