States have already chosen how to appoint electors ahead of Nov. 3
Having delegated the power to choose electors to voters in their states and having passed laws setting that process out for the 2020 election, legislators can’t just take it back without changing state law. Among other things, Democratic governors would also stand in the way in states like Michigan, Pennsylvania and Wisconsin.
But there are other obstacles. The Campaign Legal Center’s Noti says that proponents of the “rogue legislature” theory for putting Trump back in the White House have also already run out of time.
They are ignoring a key clause of the Constitution, Noti says, which gives Congress the ability to dictate “the Time of chusing the Electors, and the Day on which they shall give their Votes.”
“What people are saying is, ‘Well, we can determine to appoint electors ourselves.’ Which is true, if that had been the determination they made for the 2020 election,” Noti said. “But every state in the nation, as they have for more than a century, has made a different determination, which is to appoint electors by popular vote. And that’s what the legislature decided, and that is what, in fact, happened on Election Day.”
In effect, Noti said, states are bound by election laws they have previously passed. Congress “set the time of appointment as Nov. 3,” he continued. “So the legislative power to determine the method of appointment lasted until Nov. 3.”
New York University law professor Richard Pildes told POLITICO Magazine the true goal of the lawsuits isn’t to change vote counts but to “shape a ‘lost cause’ narrative" that could embolden GOP state legislators to “claim the authority to appoint electors themselves.” That would hinge, in part, on a generous reading of the U.S. Code on states that "fail" to make an election selection.
But, Pildes noted, “No state legislature has ever done that since the law governing the Electoral College process was passed in 1887, and even if one or more did that this year, there are further steps in the process that would block those actions from having any effect on the outcome.”
Individual electors have gone rogue in the past, but states have tightened the rules
Electors will meet in their states on Dec. 14 to cast their votes, and Congress meets for a joint session on Jan. 6, 2021 to count those votes.
Another key date to watch: Dec. 8, which is the "safe harbor deadline" for electoral college slates. If a state makes the "final determination" of its electoral college electors by that date, it "must be treated as 'conclusive' by Congress," a paper from the National Task Force on Election Crises reads. In other words: It's already unlikely and difficult to challenge the legitimacy of electors in Congress. This makes it even harder.
But what's preventing individual electors from voting how they please, once they are appointed? There are two major barriers: A number of states have laws that punish or prohibit electors from voting against the candidate they pledged to back, and many of the electors put up by state parties are hardcore party loyalists.
In 2016, seven electors ultimately broke their pledge to vote for who they said they would support. Five electors voted for someone other than Hillary Clinton despite Clinton carrying their states, while two abandoned Trump. Their decisions ultimately did not change the results of the election — Trump's Electoral College margin, which is identical to Biden's projected margin this year, gave him plenty of cushion — but the experience made both major parties tighten their grasp on the selection process this year, to make sure only loyalists would be selected. For example: Clinton herself is slated to be a New York elector for Biden.
Meanwhile, just this year, the Supreme Court upheld state laws binding electors to stick with their pledged candidate, making defections even less likely.
“Every four years, millions of Americans cast a ballot for a presidential candidate. Their votes, though, actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns,” Supreme Court Justice Elena Kagan wrote in an opinion earlier this year over so-called “faithless electors.” The court ruled that laws that remove or otherwise punish electors who break with pledges on whom to support are legal.
Now, the lawyers who argued that electors couldn’t be restrained say there is no legal basis for legislatures going rogue and appointing their own electors contrary to the state popular vote. Harvard Law professor Lawrence Lessig and Jason Harrow recently wrote on Lawfare that their own loss at the Supreme Court undercuts the possibility of a rogue legislature appointing its own slate.
“If the electors have lost their superpowers to an emerging democratic consensus, then legislatures must have lost them as well,” Lessig and Harrow wrote. “It would be a complete perversion of the Framers’ design to remove the constitutional discretion of electors but accept a constitutionally unconstrained power in the state legislatures.”
The Link LonkNovember 19, 2020 at 04:30PM
https://www.politico.com/news/2020/11/19/how-electoral-college-works-437749
Could GOP states ignore voters and send Trump delegates to the Electoral College? - POLITICO
https://news.google.com/search?q=Send&hl=en-US&gl=US&ceid=US:en
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