Wednesday, December 2, 2020

Could Legislatures Choose Electors In A Disputed Election?

I've received a number of questions on this topic. I still expect the election challenge to play out in the courts, and ultimately in the SCOTUS, but more and more evidence of both irregularities and outright fraud are coming to light. Bill Barr may not be aware of these problems, but most other people are. Now, to be clear, I think we all know what fraud means. By 'irregularity' I'm referring to a separate (although related) set of problems: Actions by state officials that contravened existing election laws. Both categories if problems are being challenged in court by the Trump legal team, and both categories can affect the validity of an election.

I wasn't aware of a simple clear explanation of how these issues could play out in the various legislatures, but commenter Brad Crawford has provided a link to a very clear article by Professor John Eastman. Eastman covers the constitutional issues involved in such a situation in lucid style. The key difficulty is that in most states electors are--elected. Thus, the question becomes: Is there a way for a legislature to override the choice of electors in the context of a disputed presidential election?

Eastman's short answer is: Yes. However, legislature's aren't courts. They operate in the political sphere, and nothing I'm aware of can force a legislature to take the action Eastman discusses. Whether legislatures decide to take such action will ultimately depend on factors peculiar to the politics of each state--which could lead to further complications, such as the election winding up in the House. I'm not recommending any particular strategy--I offer Eastman's views as a matter of information.

Here is a link to the Eastman article. I recommend the entire article, because Eastman provides considerable detail regarding the various states in question. However, I've included (below) what I consider to be the key points of his argument.

The Constitutional Authority of State Legislatures To Choose Electors

In a number of jurisdictions, state executive branch officials or courts have altered state election laws in ways that may be affecting the outcome of the presidential election, or at the very least creating unacceptable uncertainty about the results of the election. ...

All of these actions are undermining the constitutional authority of the Legislature of each State to determine the “Manner” in which the State’s presidential electors are appointed. See U.S. Const. Art. II, § 1, cl. 2 (“Each State shall appoint, in such Manner as the Legislature thereof may direct, [the] Number of Electors” to which it is entitled). The question is: What can be done about it? For most of the violations, the damage has already been irretrievably done. ...

In the early decades of our nation’s history, most state legislatures selected the state’s presidential electors themselves; only after 1824 did the majority of state legislatures provide for choosing electors by popular election. Nevertheless, the constitutional power to decide on the method for choosing electors remains exclusively with state legislatures. The Supreme Court has described the constitutional authority of the state legislatures to determine the manner of choosing electors as “plenary.” See McPherson v. Blacker, 146 U.S. 1, 35 (1892); see also Bush v. Gore, 531 U.S. at 104. It has even noted that, “whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time.” McPherson, 146 U.S. at 35 ... To be sure, “at any time” would likely not allow the Legislature to pick its own slate of electors after the results of a fair election which had been conducted pursuant to the Legislature’s existing statutory procedures, merely on the grounds that the Legislature would have preferred a different outcome. ... But such is not the case when the existing procedures were not followed, and when significant statistical anomalies raise serious questions about whether the election was fair. In such cases, the “manner” for choosing electors set out by the Legislature was not followed; the constitutional default of the Legislature exercising its plenary power—or, rather, resuming that power—is therefore again at the forefront. ...

This is in accord with federal law as well. Section 2 of Title 8 provides: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” 3 U.S.C. § 2. The intermingling of illegal with legal ballots in significant enough numbers that the election cannot be validly certified, means that the State “has failed to make a choice” on election day, and the appointment of electors therefore devolves back on the Legislature of the State, which has plenary power to decide whether to exercise that appointment power itself, or to craft some other mechanism for appointing the State’s slate of electors.


There is more than enough in the way of alteration of the legislatively approved manner of choosing electors to warrant legislatures in several states taking back their plenary power to determine the manner of choosing electors, even to the point of adopting a slate of electors themselves. Moreover, when one adds into the mix the significant statistical anomalies that raise serious concerns of outright election fraud, the Legislatures should feel themselves duty bound to rectify the situation by the constitutional remedy available to them.

Taking all this into consideration, Eastman concludes that Legislatures--faced with these statistical anomalies as well as strong evidence of outright fraud--are duty bound to investigate. If, as a result of their investigation they are convinced that the election cannot be properly certified, then they are entitled by the Constitution to exercise their prerogative to  designate a slate of electors in such way as they deem proper.

Whether they decide to do so is a completely different question.


  1. I think the states are running for cover and will just sit this out.

    Michigan gave a good "show"... Then they let the session expire last Friday and continued their support for killing the constitutional challenge against absentee ballots now headed to the USSC.

    Arizona has also made a good "show" of things... However they have been out of secession since June'ish? and are not scheduled to go back into session until Jan 12.

    I see none of this playing into favor of Trump, the parties leadership wants him gone, gone, GONE!

    I think a major issue in all of this is the larger picture. Sydney touched on it, this Dominion deal involves Republicans as well, as did the coup, as does many other things.

    I've been watching these repeats for a few decades now and every time there is an opportunity to give benefit of doubt the results are the same.

    The uniparty does what the uniparty does... Every time.

  2. The state legislatures won't have the guts or the ba%^s to do this.

    1. @American Cardigan


      Unless the Supreme Court makes unequivocal findings of election irregularities, unconstitutional practices and/or fraud.

      Which a legislature can hide behind.

    2. If the Supreme court gives the cowards cover, they will do it.

      Rob S

    3. Can SCOTUS directly throw the ball to US Congress?

    4. No. That has to operate according to the terms of the Constitution.

    5. Regardless of what anybody else does or doesn't do, Trump is the President, and I believe I heard him say this once:

      "I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

  3. AmericanCardigan is correct- they won't do jack sh** at this point without Trump getting at least one state turned in contest.

    By 2024, the turnout in the blue states will start to exceed 100%.

    1. Does anyone know of at least one swing state, which could be even partly turned by that state's Sup. Court?
      (Obviously not PA.)

  4. These state legislators don't seem to understand that they are the next targets for mail in voting fraud.

  5. I'd love to hear what others think, but it sure seems to me the only way to push any legislatures far enough along is for the "SCOTUS 5" (the other 4 are of course meaningless here) to take up and (maybe) consolidate the most significant cases and air these out enough that most of the nation outside of the Pravda bubble is actually made aware of what's gone on. This would of course have to include the 5 asking the right questions and demanding answers, all with the express, and perhaps publicly stated, purpose of getting to the bottom of things as much as possible so that decisions can be made based more on good information than bad.

    That's probably a long way of just saying that if the 5 take things up, try real hard to uncover the facts and take no prisoners in doing so, there may be a chance for legislatures to act, but no way will they act with anything short of that.

    If any of the 5 decide to sweep it all under the rug, if one or more can't even be bothered to temporarily halt certifications and then try and get as much truth as possible to the voters so that political decisions can be more factually driven, then this nation has got its work cut out for it even more than we've already imagined.

    PS: I get that SCOTUS is not a trial court and therefore supposedly not a finder of facts, but I also get that the Constitution is not a suicide pact and that the Court has plenty of flexibility to demand answers to unknowns within the context of its appellate duties. This flexibility seems even more appropriate given the time constraints operating here.

  6. My comment a week or so ago concerning a federal suit to force compliance under Art. IV, sect. 4, was aimed at this. Capricious dictates from Executive department heads and bureaucrats is definitely NOT a "Republican Form of Government". Only the legislature can make law.
    Tom S.


    1. Good point, Tom. Have Rudy, Sidney etc. been making noise about this?

  7. I posted my thoughts on how this could play out a few weeks ago. This is a bit more refined view and explains how SCOTUS could put the ball back in the state legislatures’ courts and forces the spineless b-------s’ hands.

    I think SCOTUS could issue a TRO or preliminary injunction that precludes a state from reporting the slate of electors pending resolution of the challenges on an expedited basis. (Of course, the case has to get to SCOTUS first.) The finesse move for SCOTUS would be to say in the TRO that if the state's legislature appoints its own slate, then the case before SCOTUS is moot; but that otherwise, SCOTUS will reach the merits by Jan. 3 and then announce its decision. If it determines that the election was too flawed, then it does not allow the "flawed electors" to vote. If that deprives Biden of 270 votes, then the House, voting by state delegation, will decide the election.

    I think this allows SCOTUS to be as minimally as involved as possible (short of punting). It's not picking the president, it's simply kicking it to the state legislatures and possibly the House. If the state legislatures continue to punt, then (assuming SCOTUS agrees that a state's election was flawed) and there is no majority of electors for Biden, the House votes, by state delegation

    One point on the procedure. It is important that the disputed slate of electors not get presented to Congress along with a legislative slate. If that happens, each house of Congress must agree on the slate or the "elected" slate is chosen by default. (And since the disputed slates are all in favor of Biden, Nancy P. can control the election in that instance [in the absence of some true Profiles in Courage Dems in the House].) If there is NO slate and this deprives either candidate of 270 ECV’s, then you get the situation where the House votes by state delegation.

    Thus, it is imperative that SCOTUS block the reporting of the flawed slates. Then it comes down to either the state legislature's slate or no slate.

    Andy S.

    1. "simply kicking it to the state legislatures and possibly the House."
      Gripping stuff, and an elegant solution.
      Dare we hope, that Rudy & Sidney see this?

    2. Andy, I agree, in some form or another the courts will more than likely do nothing or end up doing something that takes Biden's count below 270.

      I can't see any of them flipping it for Trump like most want or believe.

      Anany, I believe both Sydney and Lyn are very aware of this. I think that's why they're willing to lay waste to just about anything they can.

    3. "the courts will more than likely do nothing or end up doing something that takes Biden's count below 270....
      I can't see any of them flipping it for Trump like *most* want or believe."

      I wonder what gives you that impression of folks here?
      I'll bet, most here expect courts' conduct, which takes Biden's count below 270.

      "Sydney and Lyn are very aware of this."
      This, meaning, (1) more than likely do nothing, or (2) end up doing something....?

  8. Much of the process is regulated by legislation passed in 1887 by Congress. I do question what happens if two slates are sent to the counting on January 6th even without the legislatures involvement.

    The 1887 Electoral Counting Act envisions three scenarios for objections- there is a single slate, then objections have to be upheld by both Houses in separate votes for the vote to be disregarded. If there are two slates, then the Houses have to agree which slate to accept, and if the disagree the slate isn't counted. There is one wrinkle, though- the 1887 act also says the governor of the state is the tiebreaker when the Houses don't agree- that part is surely unconstitutional since it is an invalid delegation of the House's power to choose the President in a contested election.

  9. I agree with Brad- that is the most promising hypothetical for Trump's chances- SCOTUS consolidating the challenges into one case would be impossible for the media to ignore they way they have done so to date.

    There is no December deadline here- the real deadline is January 6th- it is on that date that the issue either gets settled electorally, or the House is the one that chooses the President. It would help a great deal if the Republican controlled legislatures would act to force audits of the the just run election- that is the only way to get the evidence that is needed to support the contests.

  10. With all due respect to Professor Eastman, he could have completed this entire article in one sentence. How about something like, "the thing about plenary authority is that it's plenary..."?

  11. Don't need theses states legislatures to choose the electors, just don't certify and don't send the ones they have. State "under these conditions, we cannot certify our electors." That should then throw it to US House of Representatives.

  12. Replies
    1. I presume your reply is a test. Mine, however, is not. It is a statement. I promise not to get testy over it all.

  13. What if we are using the wrong lens to view this entire crisis? What if this is better seen as a totally unprecedented and uniquely modern form of warfare launched by a cabal of global enemies such as China and domestic enemies (that term is used afterall in the oath of office sworn by every president) such as Big Tech, mass media, and Deep Staters?

    Assuming for the sake of argument that this is not simply a type of electoral fraud or contested election anticipated by the Constitution, what then? Shouldn't the President respond as in a time of war? Isn't it absurd to be debating about slates of electors if we are facing a wholesale coup against our republic?