The Problem With Congress

Don't think this one has fully sunk in yet: A member of Congress suggested that GOP-controlled states anoint Trump electors **before those states were even called.**

This wasn't overturning the election. This was scrapping democracy before the votes were even counted. pic.twitter.com/gzf89U52jD

— Kyle Cheney (@kyledcheney) December 15, 2021

...is that really ignorant people can get elected there (MTG, Boebert, Gohmert, Cawthorn, to name a few. Cruz and Hawley have no excuse; they are playing ignorant in order have cushy jobs with, really, no boss to tell 'em to get to work). The problem with Twitter:

I don’t ask this because I support it but, wouldn’t this be Constitutional? I believe there is no “right” to vote for President, it’s entirely up to states how to award their electors?

— Josh Fudge (@JoshFudge) December 15, 2021

Is that there are really ignorant people there, too. Please note I didn't say "stupid." Just ignorant.

When it comes to election laws, I am among the ranks of the ignorant.  But I've seen enough of legal practice and government operation to know that governments do not function without laws and rules.  Interpretation of what those laws and rules require may vary widely, but still, without them, government simply doesn't function.  What, you think bureaucrats are just enforcing personal whims?  I mean, the usual complaint is that there are too many laws and far too many rules.  But when it comes to elections, suddenly there are no rules and it's just "we've always done it this way?"

Except, of course, we haven't.

Sorry, that's a diversion we don't need here.  But government runs on laws.  Texas recently (well, to me "recently."  I went to law school on Vernon's Texas Annotated Statutes.  The Legislature turned those, slowly but surely, into "Codes.") codified it's statutes.  It has an entire "Election Code" dedicated just to how to conduct elections and count votes.  There are provisions for appointing electors in presidential elections.  There are provisions for challenging electoral outcomes, and election recounts.

And there is nothing in the Texas Election Code that says the ballot count is determined by the estimates made by the AP.  Period.

There are federal election laws, some centuries old.  The Electoral Count Act we are now all so familiar with was the basis of the Bush v. Gore decision (although the originally published opinion made no mention of it, IIRC).  The Supreme Court stopped the Florida recount because the ECA set a deadline for submitting electors to the electoral college so it could meet (again, according to law) and elect the President (a Rube Goldberg system if ever there was one).  In other words, the Florida Supreme Court could not rely on Florida law to gum up the Presidential election and delay the electoral college vote.  Federal law superseded.  You may like that or not, but there are laws for elections, and they are followed.

If there weren't any laws, Trump wouldn't have lost his 60+ lawsuits.  Laws and rules determined the election was decided and Trump couldn't change it.  So could "GOP-controlled states anoint Trump electors **before those states were even called**"?  I'm gonna go out on a limb, not being an election law expert, and say: "No."

They could try.  I can't think of a court in the land that would allow it (well, maybe the 5th Circuit.  Those jokers are CRAZY!).  Is it a matter of being written in the plain language of the Constitution?  (It isn't.)  Art. I, for example, says the members of the house are "chosen" by the people of the several states. How is that choosing done?  Turns out that's according to law, of which there are many.  Some laws are particular, like a sitting Senator being allowed to run for the Vice President of the U.S. and still run for the U.S. Senate (the "LBJ law" in Texas).  But none give the legislatures the power to choose the electors for the electoral college.  Here, let me put it this way:

Under Article II, the states are allotted a number of Electors equal to their Congressional delegation, which is the number of Representatives plus two for the Senators, but the actual Electors are appointed according to rules set exclusively by the state legislatures themselves.  Today, 48 states appoint all of their Electors on a “winner take all” basis from slates provided by the top vote-getter in their statewide popular election for president. But two states—Maine and Nebraska—award the Electors by Congressional District and give their remaining two electoral votes to the statewide winner. 

The article goes on to point out states over the years have experimented with all kinds of methods of appointing electors, but always the appointment was done on the basis of the popular vote.  Now, could a legislature after the vote decide they didn't like the outcome and change it to one preferred by the majority in power?

No.

Much has been made by Trump supporters of "changes" in election procedure in states because of covid, changes not necessarily approved by the legislatures.  There is (IIRC) federal law requiring all changes to elections for POTUS being in place some specified period of time before election day. But that doesn't mean any changes (like Harris County allowing drive through and 24 hour voting) are inherently illegal and fraudulent (the DOJ has yet to investigate Harris County, much less charge them for any violation of law).  There was also some dicta from Rehnquist, again IIRC; but the courts have not followed it, or upheld any complaint brought to them about changes in procedure that were allegedly "illegal."

But throwing out the law everyone acted under in the election in favor of appointing a politically correct (!) candidate by choosing electors via the legislature would be a violation of several laws, and most probably would result in the reversal of such an action, or the rejection of any electors from that state.  The latter would be a bit of a "death penalty" punishment, but worth it to teach states thereafter not to even THINK about such shenanigans.

In short, it is up to states to decide how to award their electors. McPherson v. Blacker involved that question, and decided states had authority under Art. II to select electors as they chose.  The question of changing the law too close to the election, or ignoring it entirely after the results were know, was not at issue.  However, federal law setting the date for electors to meet, was.  That portion of the state law at issue was declared void. So deciding the day after the election that things weren't done according to Hoyle and so some group will decide who really won, is not going to work.  Trump tried that without presenting any evidence in 2020.  It won't work in 2024 any better.

We've been down this road once or twice before, in other words.  Ignorance is no guide for how we proceed; nor is it a good warrant for fearing the future.