One of the very last-ditch efforts Trump proponents have floated since Election Day has been that state legislatures should simply overrule the results of the presidential election in their states. This proposition is so radically un-American — so contrary to our basic national principles — that in a normal environment, it might simply be laughed off. But 2020 being what it is, the theory has made its way into the pro-Trump social media ecosystem, cloaked in a thin veneer of legalese.
To be absolutely clear: A state legislature cannot overrule the state’s popular vote for president. This is not a close case.
By way of background, it’s important to remember that voters do not directly elect the president. Rather, under the Electoral College system, the voters choose presidential electors (the members of the Electoral college) from each state, and the electors in turn cast the official votes for president. So for a state legislature to overrule the popular vote would really mean for the state legislature to appoint the state’s presidential electors, in defiance of the results of the state’s popular vote. For example, under the proposal that has been floated this week, a legislature in a state where Vice President Biden won the popular vote would pass some sort of law or resolution appointing members of the Electoral College who would cast their votes for President Trump.
The Constitution has two main provisions that govern the selection of presidential electors. First, the Constitution says that each state’s legislature has the authority to determine that state’s manner of choosing its electors. Second, the Constitution gives Congress the power to decide when the electors are chosen, which Congress has done by enacting a federal law designating the Tuesday after the first Monday in November — Election Day.
Proponents of the legislative-appointment theory read too much into the first constitutional provision and forget about the second. Although every state has chosen its electors by popular vote for more than a century, most constitutional experts agree that, under the legislature’s authority to choose the “manner” of appointing electors, a legislature could theoretically decide before Election Day to cancel the popular vote for presidential electors and instead appoint them directly. But Congress’s enactment of a uniform national Election Day under its own constitutional authority — which supersedes any contrary state actions — prohibits the choice of electors from being made based on elections held or laws passed after Election Day.
In other words, under the constitutional timing provision as implemented by federal law, the absolute last day a state legislature could have decided to appoint the state’s presidential electors for this election was November 3, 2020. Once that date passed, the determinative popular votes had all been cast, and therefore the legislature’s authority to change the state’s manner of appointing electors in 2020 passed as well.
Recognizing that emergencies can happen, federal law includes a very limited exception to the requirement that presidential electors be chosen on Election Day: If a state tried to hold an election as scheduled, but that election “failed,” the law allows a state legislature to then create a backup system for choosing electors. Never in American history has this exception been used, so it’s not entirely clear what it would mean for a presidential election to “fail.” Perhaps a natural disaster that renders parts of a state uninhabitable on Election Day would meet the standard. But regardless of what might constitute a failure for these purposes, it’s quite clear that nothing remotely in that ballpark occurred on November 3. Not only were there no natural disasters, to the contrary Election Day 2020 was in many ways one of the smoothest-running ever, with turnout apparently setting records across the country. The “failure” exception has no bearing on this election.
There is a second, independent reason state legislatures cannot cancel the popular vote results after Election Day: to do so would violate the Constitutional rights of the voters. Specifically, the Fourteenth Amendment to the Constitution prohibits states from taking away their citizens’ rights without due process of law. One such right, of course, is the right to vote. And the Supreme Court has made clear many times, in more than a hundred years’ worth of precedents, that the constitutional right to vote does not just mean the right to put a ballot in a box, but also the right to have that ballot counted toward determining the election’s results. For a state legislature to invalidate a popular election would be equivalent to simply refusing to count the citizens’ votes. The Constitution unambiguously prohibits disenfranchising any eligible voters, much less an entire state’s worth.
One final point bears mention: What would happen if a state legislature were to violate the Constitution and federal law, disregard court orders, and purport to appoint the state’s presidential electors anyway? It wouldn’t work. The rules for counting electoral votes specifically address a situation in which a state sends in two sets of votes: one set cast by electors chosen on Election Day, and the other cast by electors who claim to have been chosen by some other method. The Electoral College rules specifically give “conclusive” effect to the votes cast by the former — the electors chosen on Election Day — and require that those votes be counted to the exclusion of any others. An illegal legislative usurpation of the election would fail.
It’s unfortunate that any of this needs to be said. No American official – no one holding public office in a nation dedicated to the rule of law – should ever consider themselves even theoretically empowered to rescind the inalienable sovereignty of the people. Fortunately, our Constitution and our laws are designed to restrain the worst impulses of partisan actors. State legislatures have no power to veto their own citizens’ votes for president.
Photo credit: Owaki – Kulla/Getty Images