The Repugnant Plan Brewing for State Legislatures to Steal the Election Must be Stopped
The electoral college count is going against President Trump. His efforts to overturn those results in courts are unlikely to succeed. So some Republicans — including the president’s son — are starting to promote a bid to have GOP-controlled state legislatures undo the will of the voters in states won by former vice president Joe Biden.
They would accomplish this undemocratic feat with the electoral college version of the nuclear option. The ordinary practice in a state where Biden won the popular-vote total would be that state officials certify the election results and send a slate of electors pledged to Biden to Congress for its formal approval.
But state legislatures that conclude the popular-vote total has somehow been corrupted could claim the constitutional authority to submit competing slates of pro-Trump electors and ask Congress to accept that result instead. That radical move would set up a potential clash between the House, with its Democratic majority, and the Senate, which is likely to remain in Republican hands. This bicameral breakdown would create electoral chaos and a constitutional crisis.
On Thursday, as Trump’s electoral college prospects dimmed, Donald Trump Jr. retweeted conservative commentator Mark Levin: "REMINDER TO THE REPUBLICAN STATE LEGISLATURES, YOU HAVE THE FINAL SAY OVER THE CHOOSING OF ELECTORS.” Sen. Lindsey O. Graham (R-S.C.) signaled potential support in an appearance on Fox News’s Sean Hannity. “Everything should be on the table,” Graham said.
This is a horrible idea, one that should be morally repugnant to every American. It is a direct repudiation of the well-settled principle that each state’s electoral votes should be based on ballots cast by its citizens.
Yes, the Constitution gives state legislatures the technical power to appoint electors. But no state legislature has exercised this mechanism since the 19th century. The long-standing practice has been that legislatures have ceded that authority to the voters in their state and allowed the president to be chosen by popular vote.
Editor's note: This article was published before a statement made on Friday, November 6 by Pennsylvania State Senate Majority Leader Jake Corman (R) that the state would award its electoral votes to the certified winner of the popular vote. This statement does not preclude the legislature awarding the vote to Trump in the unlikely event of a recount or lawsuit changing the state's popular vote winner.