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The Constitution itself should block Trump’s attempt to overturn election

by Kimberly Wehle, opinion contributor - 12/16/20 9:30 AM ET

At the end of the day, the Trumpian legal assaults on the 2020 presidential election are a plea for a new kind of government — a kind of government that no longer hinges on the consent of the governed. A kind that is no longer government by “We the People,” but instead government by “We the Politicians.”

But the only legitimate way for Trump supporters to make this drastic change is through a constitutional convention, which hasn’t occurred since 1767. It cannot — and will not — happen through the courts.

In court filing after court filing, the Trump campaign and its proxies have urged courts to take two unprecedented steps with respect to Joe Biden’s popular and electoral college vote wins: cancel millions of votes on technical grounds that have nothing to do with fraud or the Constitution, and invite Republican-led state legislatures to hand their slates of Electoral College votes to President Donald Trump — regardless of a suspect state’s popular vote for Biden.

The Republican argument for disregarding the will of the people and having politicians pick presidents based on party loyalty is as follows. Article I, Section 4 of the U.S. Constitution states that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature.” For presidential elections, Article II, Section 1 states that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Each of these provisions uses two important words: “state” and “legislature.”

Team Trump’s argument seizes on the word “legislature,” and claims that any election-related procedure that is not mandated by the actual legislature of the state in question is unconstitutional. So, the argument goes, if a legislature authorizes a secretary of state to exercise discretion in administering elections, and the secretary of state exercises that discretion (by, for example, adding ballot drop boxes during a pandemic), the executive branch rule is illegal.

The Trump camp goes even further, however (and this is where things get really nutty). It argues that if a government official or office other than a state legislature establishes an election-related rule or procedure, and that rule was in place for the November election, then all votes cast pursuant to that rule must be cancelled, nullified, obliterated. (This only applies to the presidential part of the ballot, mind you, not down ballot races — an inconsistency that is unexplained and inexplicable.) Once votes are cancelled due to technicalities in voting procedures that after-the-fact were litigated and deemed improper because they didn’t derive formally from the legislature itself, then the Trump plaintiffs would enable the majority party in a particular state’s legislature (read: Republican) actually to pick the president — regardless of the voters’ say.

Recall, however, that the Constitution also uses the word “state.” A state is more than just its legislature. It includes a governor, courts, government employees and, of course, its citizens. At the federal level, Article I vests lawmaking power in the Congress, but Congress also authorizes executive branch agencies to make laws called “regulations,” and the Supreme Court has deemed those hand-offs of legislative power constitutional. Since the dawn of the Republic, moreover, presidents have effectively made laws through executive orders, the basic constitutionality of which has largely been assumed.

So the notion that any laws governing voting practices that aren’t passed by both houses of a state legislature and signed by the governor are unconstitutional is hardly clear. And even if it were, the remedy would not be to silence voters by the millions, as courts have unequivocally affirmed by dismissing dozens of election challenges in recent weeks.

To be sure, there is no affirmative “right to vote” in the original Constitution (although constitutional amendments forbid ballot discrimination on the basis of race, gender and so on). But no court would take seriously the suggestion that American votes are not actually real — that they are instead subject to the whims of the state politicians in power, who can simply vote to take them away, even after they are cast.

In Reynolds v. Sims, Chief Justice Warren wrote for the Supreme Court in 1964 that “Legislatures represent people, not trees or acres.” Two years later in Harper v. Virginia Board of Elections, Justice Douglas penned an opinion that famously called the right to vote “a fundamental political right because it is preservative of all rights.” As with any Supreme Court decision interpreting the Constitution, that is the law of the land right now. Individual votes cannot just be tossed aside by aggressive politicians for the sake of retaining power. That’s not a representative democracy. It’s something else — a plutocracy, or worse.

The Framers have an answer for would-be changes in the basic structure of American government: a constitutional convention. Article V provides two ways to do this: Congress, by two-thirds vote of both houses, can propose a specific amendment and three-quarters of the states ratify it (which is how the Constitution has been amended so far), or two-thirds of the states can request that Congress hold a constitutional convention. Any amendments proposed there would be effective if ratified by at least 38 states.

If that were to happen, anything goes. (The original constitutional convention was called to amend the Articles of Confederation, after all. They were scrapped instead.) The Constitution specifies no rules, no referee and no bans on lobbying or foreign influence at constitutional conventions. Everything in the Constitution would be up for grabs — including the right to free speech, freedom of religion, freedom from random police searches and seizures and, yes, the right to vote.

Although there are strong national coalitions calling for a 21st century constitutional convention, it’s a bad idea. The late Justice Antonin Scalia quipped in 2014, “I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it.” That said, an amendment enshrining the right to vote would be a good development for the dubious trajectory of American democracy. But with 126 Republican members of the House of Representatives having joined Texas Attorney General Ken Paxton’s failed Supreme Court bid to cancel millions of votes cast by citizens of four other states, one could hardly count on that caucus to do the right thing if the Constitution’s text was on the chopping block.

Kimberly Wehle is a professor at University of Baltimore School of Law and author of the books “How to Read the Constitution — and Why,” and “What You Need to Know About Voting — and Why.” Follow her on Twitter @kimwehle.