The Republican Party has lost in the popular vote for president in seven of the last eight elections, and that dismal record has some Republicans doing some serious rethinking. Not about how to broaden the GOP’s appeal to voters, but about how to take voters out of the equation.
Republicans have an advantage in the Electoral College, which delivered George W. Bush in 2000 and Donald Trump in 2016 to the White House after they got fewer votes than their opponents. But that advantage proved insufficient this year. Joe Biden won enough states to carry the day.
Trump and his allies insist he lost only because the election was stolen, a claim that has been summarily laughed out of several courts. Judges, you see, require actual evidence, which has been missing in action.
But who needs the courts? There is a Plan B: Get Republican-controlled state legislatures in Pennsylvania, Michigan, Arizona and Georgia — all won by Biden — to replace the electors committed to him with a slate of their very own choosing that would vote for Trump.
The idea was endorsed by one resident of the fever swamps of the right — radio host Mark Levin, who is to derangement what grass is to green. He tweeted a notice to Republican legislatures: “You have the final say over the choosing of electors,” commanding them to “get ready to do your constitutional duty.” Sen. Lindsey Graham, R-S.C., indicated he was open to the idea.
An unidentified Trump legal adviser raised the option with Barton Gellman of The Atlantic before the election. The excuse would be vote fraud, even though neither the courts nor state election officials have found any irregularities that would affect the outcome anywhere.
The scenario sounds preposterous, but if we’ve learned anything from the past four years, it’s that howling lunacy is no deal breaker for Trump or his party. If flouting the will of voters is the only way to keep their desperate grip on the White House, it will get a respectful hearing.
Many Americans don’t realize that state legislatures once had this power and used it. The Constitution stipulates that “each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,” and in the early decades of the republic, many state legislatures chose the electors. By 1832, every state but South Carolina assigned the task to voters. In its 2000 Bush v. Gore decision, though, the Supreme Court noted that a state “can take back the power to appoint electors.”
But that retrograde option exists only in advance of an election. Legislators can’t adopt a “heads we win, tails you lose” procedure. For a legislature to decide at this point to throw out the decision of its voters and substitute its own choices would be not only illegal but also unconstitutional.
Under federal law, each state has to appoint its electors by Election Day. Any electors chosen afterward would be disqualified. Another federal statute says any change in the method of appointing electors must also occur before the election. The law doesn’t allow do-overs.
Even if the laws could be circumvented, this gambit would mutilate constitutional guarantees of due process and equal protection. When citizens of a state cast their ballots for president, they do so on the ironclad promise that their collective choice will govern. To renege on that promise would violate their rights.
“When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental,” the Supreme Court said in 2000. “The right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Even a Supreme Court as conservative as this one would be highly unlikely to approve such a brazen assault on democracy.
In reality, no legislature is likely to moon its own people by overruling their judgment. To do so would be political suicide for at least some Republican lawmakers whose voters, after all, just confirmed their preference for a Democratic president. It would invite vengeance at the polls. And it would be futile because the courts would bury it six feet deep.
By now, it should be clear that Trump failed in his reelection bid. If he pursues this option, he will only be devising one more way to be a loser.