The Long Odds Facing Trump’s Attempts to Get State Legislatures to Override Election Results

by Ian MacDougall, ProPublica

On Friday afternoon, Donald Trump is set to hold a meeting at the White House with the Republican leaders of Michigan’s Senate and House of Representatives. It’s unclear what the president plans to discuss, but multiple press reports suggest Trump, in a desperate bid to cling to power, has pinned his hopes on persuading GOP-controlled legislatures in battleground states that voted for Joe Biden to intervene and throw the election to him.

That aspiration cropped up in the Trump campaign’s courtroom maneuverings this week. Legal papers filed with a federal court in central Pennsylvania (the campaign filed a draft version, apparently in error), showed that the campaign had contemplated — but ultimately decided against — asking the judge to order “the Pennsylvania General Assembly to choose Pennsylvania’s electors.”

Five states fit the description of battleground states with GOP-run legislatures that voted for Biden: Michigan, Wisconsin, Pennsylvania, Arizona and Georgia. It would be difficult to convince lawmakers to overturn the will of voters in even one state. For Trump to snatch victory from the jaws of defeat, he would need to pull that trick off in three states.

That’s a very tall order. There are steep political hurdles, starting with the fact that the two Michigan lawmakers visiting the White House on Friday have previously made statements rejecting legislative intervention. But even if those lawmakers waver or succumb to Trump’s arguments, as many Republicans have, there are legal impediments, and they’re almost certainly insurmountable.

Unlike the fevered cries of election fraud — which many lawyers in the Trump camp have undercut by acknowledging in court that they have no evidence of fraud — the Trump side’s legislature theory has some basis in fact. Article II of the U.S. Constitution holds that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” to vote for president as a member of the Electoral College. In the early days of the republic, some legislatures chose electors directly or vested that power in other state officials. Today, every state allocates presidential electors by popular vote (and all but Maine and Nebraska apportion them in winner-take-all fashion).

As far as the Constitution is concerned, there’s nothing to stop a state legislature from reclaiming that power for itself, at least prospectively. Separately, a federal law, the Electoral Count Act of 1887, provides that whenever a state “has failed to make a choice” in a presidential election, electors can be chosen “in such a manner as the legislature of such State may direct.”

But even so, there’s a more immediate obstacle: state law. In the five states where Trump’s team hopes GOP-run statehouses will hand him a second term, the popular vote is enshrined in the state constitution, the state’s election code or both.

Consider Michigan, which Biden carried by nearly 158,000 votes. The state’s election code specifies that the presidential electors “who shall be considered elected are those whose names have been certified to the secretary of state by that political party receiving the greatest number of votes” for president — the winner, that is, of the popular vote. The Michigan Constitution grants qualified citizens “the right, once registered, to vote a secret ballot in all elections,” including “in the election for president and vice-president of the United States.”

The two Michigan Republicans expected to meet with Trump on Friday, Senate Majority Leader Mike Shirkey and House Speaker Lee Chatfield, have expressed concerns about irregularities and potential fraud in the Michigan election, a pet subject of the president and his allies. The Trump campaign and its supporters, however, have failed to substantiate their claims, despite papering state and federal courts with affidavits from GOP election observers and others who purport to have witnessed suspicious behavior or wrongdoing by election workers in Detroit, a Democratic stronghold with a sizable Black population. Last Friday, one Michigan judge called affidavits submitted by Republican observers “rife with speculation and guess-work about sinister motives” of poll workers. On Thursday, the Trump campaign withdrew a federal lawsuit it had filed in the state, claiming — falsely, according to Michigan election officials — that the county election board for the Detroit area had declined to certify the county’s election result.

Yet — up till now, at least — both Shirkey and Chatfield have rejected the proposition that state legislators might intervene to supplant the will of Michigan voters. “That’s not going to happen,” Shirkey told Bridge Michigan on Tuesday. He noted that state law left up to the electorate who would receive the state’s 16 electoral votes. Chatfield made a similar point in a statement on Nov. 6, a few days after the election, though he gave it a Trump-y spin, calling for every “legal vote” to be counted, a phrase Trump and his allies have adopted to imply that there exist large numbers of illegal votes. “The candidate who wins the most of those votes will win Michigan’s electoral votes, just like it always has been,” Chatfield said. “Nothing about that process will change in 2020.” Their counterparts in Pennsylvania, Wisconsin and Arizona have made similar statements.

Read more at ProPublica

About Post Author

Professor Mike

Professor Mike is a left-leaning, dog loving, political junkie. He has written dozens of articles for Substack, Medium, Simily, and Tribel. Professor Mike has been published at Smerconish.com, among others. He is a strong proponent of the environment, and a passionate protector of animals. In addition he is a fierce anti-Trumper. Take a moment and share his work.

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