Legislators in a few states may well try to reclaim state legislatures’ prerogative to name Electoral College presidential electors directly, usurping their own constituents’ privileged role to do so.
Legally, they could do that. The U.S. Constitution’s 12th Amendment assigns to state legislatures primary authority to prescribe selection of the electors, even though, over time, all states have welded their presidential electors to the popular vote.
On the other hand, Republicans control three-fifths of state legislatures and thus have a heightened partisan incentive to name electors when voters back a Democratic presidential candidate.
So, things could change.
Florida Gov. Ron DeSantis was among former President Donald Trump’s advocates who urged Michigan and Pennsylvania lawmakers days after the November 2020 election to step in and rescue former President Trump’s re-election.
Nothing came of that, and the futile presidential election challenges in battleground states last fall suggests state legislatures, under current law, can’t simply overturn an election by discarding their own voters’ presidential choice and assigning electoral votes otherwise.
However, after President Biden’s inauguration, a prominent Arizona legislator pressed for an unsuccessful rough-shod way to capture the elector selection role. Her bill would have let the lawmakers upend their state’s officially certified popular vote with their own choice.
In any case, switching to lawmaker-picked presidential electors would be a truly big step back to long-gone days.
In the 1800 election, in the nation’s infancy, only six of the nation’s 16 states decided electors by popular vote. (In today’s parlance, there wasn’t really a popular vote: only property-owning males could vote in most states.)
But in that year, two state legislatures did jump in to usurp voters’ role in naming electors — and a third nearly did so — threatening Thomas Jefferson’s insurgent election over incumbent John Adams.
The 1800 election marked the birth of America’s cantankerous two-party system, and the established Federalists were challenged by Jefferson and Aaron Burr, his running mate, of the upstart Democratic-Republican party. Their new party surged in local spring elections that year in Massachusetts and New Hampshire, where the legislatures responded by snatching elector selection from the voting populace ahead of the election.
What’s more, when voters early that year elected a Democratic-Republican legislature, New York Gov. John Jay was pressed to call a special session of the lame duck legislature to award presidential electors based on popular vote, thus denying the incoming D-R legislature its selections. Although Jay was a Federalist, he had earlier been the first chief justice of the U.S. Supreme Court, and he refused such chicanery.
Now, 220 years later — and thanks to the Constitution and exacting procedures and deadlines in federal and state laws — this country sturdily resisted attempts to reverse a presidential election, despite Trump’s determined efforts otherwise. What’s more, the courts would probably reject a state legislature’s attempt to alter its elector selection system to reverse its results after the fact.
But, more significantly, within weeks of the 2020 election, top Republican officials in political battleground states that voted for Biden and have GOP-run legislatures — Michigan, Wisconsin, Pennsylvania, and Arizona — said they wouldn’t misuse legislative authority to flip the election.
And in Georgia, where state officials’ resistance to Trump’s aggressive ploys to reverse his re-election loss sparked national news stories for months, the top Republican officials issued a joint statement in early December refusing to call for a special legislative session to alter Georgia results, adding that doing so would “not have any impact on an ongoing election and would only result in endless litigation.”
Whether those Republican officials in battleground states might work to put in place new rules allowing them — rather than the popular vote — to allocate their states’ electors in future elections remains to be seen, but their demonstrated loyalty to fair elections and the rule of law displayed in the 2020 election probably made Gov. Jay smile from beyond.
Ed Maixner is a retired journalist who edited the Kiplinger Agricultural Letter and who now writes for Agripulse.com. Previously, he led the Washington Bureau at Farm Progress Companies and served as a legislative assistant to U.S. Sen. Byron Dorgan of North Dakota. Follow him on Twitter @CowPokeEd