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It’s a poisonous idea that stands out as radical and destructive, even in a year of debating impeachment of the courts and cutting funding to the police. The best that can be said is that it is almost certainly a non-starter, which doesn’t mean it won’t get more oxygen.
Donald Trump Jr. pushed this option, and Senator Lindsey Graham, now tied to Trump more firmly and more completely than he was to the late Senator John McCain, said “everything should be on the table.” Pennsylvania House Conservative Daryl Metcalfe said, “Our legislature must be prepared to use all constitutional authority to right the wrong.”
We are perhaps a presidential tweet away from this gamble becoming orthodoxy for much of the Republican Party.
There is no doubt that state legislatures have enormous power in this area. Article 2 of the Constitution states that “each state shall appoint, in such manner as its legislature may order, a number of electors equal to the total number of senators and representatives to which the state may be entitled in Congress. . ”
As the book “After the People’s Vote” notes, the constitution does not require that state voters be chosen on the basis of popular vote, but it has been the norm for nearly 200 years. After 1828, only the South Carolina legislature directly appointed voters, continuing the practice until 1860.
In the Florida voting controversy in 2000, the Florida legislature considered appointing voters as it appeared, amid all the controversy and rival court rulings, that the state could miss the date. deposit limit of voters.
State legislatures acting in the present context would constitute extraordinary taxation. This scenario presumably involves the courts, first of all, dismissing Trump’s legal challenges because they lack the required evidence. So the vote count in key states would remain the same and there would be no convincing evidence of massive fraud, and yet legislatures would act anyway.
Republicans control legislatures in all key states, and they are under pressure from Trump and his supporters, but that would require them to challenge the will of the people expressed in a vote that, at that point, would have been pleaded. and maybe told and verified.
One can only guess that the political reaction against this in the states in question would be thermonuclear. This must be one of the reasons why the Republican Leader of the Pennsylvania State Senate, Jake Corman, has so far been steadfast in saying that the Legislature is not following this path.
Such a step would also be the subject of litigation likely to go as far as the Supreme Court. Even though the power of legislatures is vast, there will be a dispute over whether they can ignore the results of the elections which, before an undesirable outcome, were supposed to determine the state’s voters.
On top of that, legislatures appointing voters would trigger a historic donnybrook in Congress, which examines objections to ballots under the 1887 Election Count Act. If Republicans aren’t united – and certainly a handful of Senators, perhaps more, would refuse to sign up for this bet – the party would not be able to push back objections to Trump voters appointed by the legislature.
A more sensible course is to give the Trump team the time and space to pursue recounts and litigation. Then, if those efforts don’t produce vote count reversals or clear evidence of widespread fraud affecting tens of thousands of votes, the president should be urged to fold his tent.
The fact that there is even talk of Electoral College strategy is a sign of weakness, not of strength, and desperation is not a good reason to precipitate a constitutional crisis.
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