Could Pennsylvania Republicans bypass the popular vote for president and pick the winner? (hint: yes)

mccall ^ | Sept 2020 | Angela Couloumbis and Cynthia Fernandez

[doug from upland]

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It is the nightmare scenario Pennsylvania election officials have fretted over for months: a knock-down, drag-out fight over which presidential candidate will win the state and snag its coveted electoral votes. Advertisement 01:10 05:37

Now, the head of the Republican Party of Pennsylvania has fueled fears of chaos after Election Day, raising the specter that his party could break with tradition and allow the GOP-controlled Legislature to choose a slate of presidential electors to cast the state’s votes for Donald Trump — even if the president doesn’t win the popular vote.

In comments to The Atlantic made public this week, state Republican Chairman Lawrence Tabas suggested that he had spoken with Trump campaign officials about the possibility of bypassing the results of the popular vote, should there be uncertainty or disputes over the validity of ballots cast. The U.S. Constitution, Tabas said, allows state legislatures to choose presidential electors.

[semimojo]

...no State Law can handicap the Legislature from making that decision, as the Constitution has a little Supremacy Clause.

I know that's the argument, but if a state legislature makes a law on how electors will be selected, and that law's signed by the governor, I'm not sure they can just ignore it when it's inconvenient.

That would mean the constitution and the governor really have no power because the legislature can unilaterally dictate state law.

The reality is the legislature would be violating state law and the state constitution but SCOTUS may say that's OK since it's a federal election.

I'm skeptical.

[semimojo]

But how the States select their electors is not based on any State laws, is is, per the US Constitution, determined solely by the State Legislatures.

Once the state legislature determines how electors are selected they codify it by passing a law per their State’s constitution. How else could they do it?

I think it’s implicit when the Constitution says the state legislators decide how electors are chosen it means they choose consistent with the constitution of their respective states.

Otherwise it means state legislatures aren’t bound by their state constitutions and there’s absolutely no balance of powers.

Not what I think the framers intended.

[mdmathis6]

The Pa Court can’t rule on a US constitutional specified process for legislatures dealing with uncertainties in a federal election and the assignment of electors. It can rule on what is to be done for votes on the state races.

Now how the SCOTUS might rule if the process is challenged is another matter.

[Political Junkie Too]

Before it gets to the point of the legislature stepping in to directly appoint the electors, a lot of other things have to happen first.

Look at the timeline of the vote in 2000 in Florida (Electoral College safe harbor date is December 12, meets on December 18):

---

• November 7, 2000 - Election Day
• November 14, 2000 - Deadline for certifying the election.
• November 15, 2000
  • Broward and Dade counties ignore deadline and continue manual recounting.
  • Florida state Supreme Court denies petitions to stop recounts after deadline.
  • Florida Secretary of State announces she will not include further returns from the counties.
• November 16, 2000
  • Gore campaign files a challenge to the certified results.
  • Florida Supreme Court allows West Palm Beach to continue manual recounts.
• November 17, 2000 - Florida Supreme Court bars Secretary of State from certifying the election "until further order of the court."
• November 20, 2000 - Florida Supreme Court hears arguments regarding inclusion of hand-recounted ballots.
• November 21, 2000 - Florida Supreme Court rules manual recounts can continue.
• November 22, 2000 - Bush campaign files in federal court for review of Florida Supreme Court ruling.
• November 23, 2000 - Gore campaign files in Florida Supreme Court to force Dade county to continue recounts. Court denies request.
• November 24, 2000 - US Supreme Court agrees to hear case.
• November 26, 2000 - Florida Secretary of State certifies election.
• November 27, 2000 - Gore campaign files to contest the Florida election.
• December 1, 2000 - US Supreme Court hears oral arguments.
• December 2, 2000 - Florida Circuit Court begins election contest trial.
• December 4, 2000
  • US Supreme Court vacates Florida Supreme Court decision.
  • Florida Circuit Court rules against Gore campaign.
• December 7, 2000
  • Florida Supreme Court hears appeal of Florida Circuit Court ruling.
  • Florida legislature issues proclamation calling for special session to consider appointing Electors.
• December 8, 2000
  • Florida Supreme Court reverses Circuit Court ruling against Gore campaign.
  • Bush campaign seeks stay of Florida Supreme Court ruling.
  • Florida legislature meets in special session and adjourns to meet again on December 12.
• December 9, 2000
  • Florida begins manual recount of "undervote" ballots.
  • Florida Supreme Court denies Bush campaign request for stay of order.
  • US Supreme Court issues stay to stop manual recounts.
• December 11, 2000 - US Supreme Court hears oral arguments on Florida recount.
• December 12, 2000
  • Florida legislature meets and approves 25 Electors pledged to Bush.
  • US Supreme Court issues ruling: 7-2 to overturn Florida Supreme Court ruling on recounts, saying that recounts must be statewide for "equal protection;" 5-4 that remedies not possible by deadlines.
• December 13, 2000 - Gore campaign concedes Florida election, declares Bush the winner.
• December 18, 2000 - Electoral College meets and selects George W. Bush as President.

Now, shift that timeline by another 10 days due to pushing out the return of "mail-in" ballots. That is the chaos that Democrats want to inject into the 2020 election in at least five states.

Article II Section 1:

“The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”

The clause in Article II Section 1 mandating the Electoral College meet on the same day is what ultimately prevents this from spilling over into the new year. The Electoral College will meet whether these states participate or not. If they do not participate due to self-inflicted delays, the 270 vote threshold for majority will be reduced by half the Electoral votes of the states that fail to participate.

---

First, Pennsylvania has to allow the time for court challenges to proceed. Then they have to allow time for appeals. However, they have to get all of this done before the Electoral College safe harbor date, or Pennsylvania will not participate in the Electoral College.

If things get the brink, that means the legislature has the choice of letting Pennsylvania go un represented in the election of the President, or they step in at the last minute and make a choice.

-PJ

[MHGinTN]

Thank you for the excellent explanation!

[jz638]

The Pa Court can’t rule on a US constitutional specified process for legislatures dealing with uncertainties in a federal election and the assignment of electors. It can rule on what is to be done for votes on the state races.

I don't blame you for assuming that the PA supreme court would be beholden to the boundaries of their authority and subject to the limits placed on it by the US and PA constitutions as well as established case law and applicable legislation at both the state and federal levels.

I want to emphasize that this is not a safe assumption and if the leftists see an opportunity to steer things to a desired outcome, they will find a way to take it. The PA supreme court already this year has effectively rewritten state election laws by fiat on multiple occasions, decided to give the Governor unlimited power to keep the economy shut down without any effective check on his power by the legislature, and this is after their stunt a few years ago when they redrew legislative districts by fiat. To their great shame, the republicans in the state have mostly let them.

Sure, if a case gets to the US Supreme court, there's more of a chance that a bad decision gets overturned or set aside, but the PA supreme court has already placed its dirty thumbs on the scales of fairness multiple times, allowing mail in ballots without postmarks or matching signatures to be counted up to three days after the election. The vote pool could be so dirty in a close election that there would be no effective means of resolving it, and I don't doubt that if it came to it, and if the PA supreme court didn't somehow usurp this authority, the PA legislature would suddenly lose its nerve to vote for a slate of republican electors in the case of a conflicted result.

PA has to be won decisively and outside the margin for fraud, because fraud is going to seep its way in otherwise and even if it resulted in a Trump victory, it would allow for the same claims of illegitimacy that the Dems used in 2000, but this time it would be weaponized.

[Svartalfiar]

I know that's the argument, but if a state legislature makes a law on how electors will be selected, and that law's signed by the governor, I'm not sure they can just ignore it when it's inconvenient.
That would mean the constitution and the governor really have no power because the legislature can unilaterally dictate state law.
The reality is the legislature would be violating state law and the state constitution but SCOTUS may say that's OK since it's a federal election.

The thing is, is all the Constitution requires for electors is that the method of choosing them is decided by the Legislature - that explicitly is not a law being passed, it's simply them deciding on the method. They could get together and decide to hold their own mini-election for electors, and that would suffice.

The Legislature CAN dictate State law, if it so chooses (has sufficient votes). I'm pretty sure every State has an option for a supermajority vote to override a governor veto, so they certainly are able to pass laws without the governor. As well, some States have an option where the governor must actively sign or veto legislation - laws go into effect within a certain timeframe if the governor does nothing (contrariwise, some States have a pocket veto where if that timeframe falls within the Legislature recessing, the bill fails instead of becoming automatic law). But as I said above, selecting electors doesn't require a law being passed, it isn't a lawmaking function.
Current laws can easily be determined to embody the Legislature's general methods accepted for choosing electors, but in legal principle, a specific law outweighs a general law, and a more recent one is usually more applicable than an older one. So anything the Legislature does for an election is easily a more recent, election-specific course of action, versus the general election rules in place, and would replace them for that specific election only.

In the early days of the Republic, many States did actually choose electors via a legislative vote. Moving to popular votes for the electors took some time, although now every State does currently do so. Likewise, Senators were originally (and should still be!) selected by the State Legislatures - they didn't need approval from the States' governors.


I think it’s implicit when the Constitution says the state legislators decide how electors are chosen it means they choose consistent with the constitution of their respective states.

Otherwise it means state legislatures aren’t bound by their state constitutions and there’s absolutely no balance of powers.

Except an implicit determination is just that - implicit, which has little to no bearing in law. Without an explicit reference/law/text/something, ten half-decent lawyers could take a section with implicit meaning, and find 15 different reasonings, all that implicitly make sense. Law means what it says - if we accepted that the law has implicit functions, then how can that law be taken at face value to mean what it says? Anyone could interpret a law to mean just about anything. OJ the ham sandwich did it.

Obviously State Legislatures are bound to their own Constitutions, but the US Constitution has, as I mentioned originally, Supremacy. The Constitution does not delegate to the States the authority to determine how the Legislature may choose the method of selecting the electors, it delegates to the State (Legislature) the power to choose the method of selecting electors. The State cannot take that power from their Legislature.

[semimojo]

The Constitution does not delegate to the States the authority to determine how the Legislature may choose the method of selecting the electors, it delegates to the State (Legislature) the power to choose the method of selecting electors. The State cannot take that power from their Legislature.

The state legislature is a creation of the state’s constitution. Without that constitution the legislature doesn’t exist, so to say the legislature can ignore the legislative rules laid out in the state constitution is nonsensical.

It’s true that the federal constitution ranks above the state constitutions, but the state legislatures are subordinate to both.

If the state constitution says election laws have to be signed by the governor or get a two thirds majority in both state houses the legislature can’t do anything to change that but amend the constitution.

The legislature can choose the method of selecting electors but it has to do it within the confines of the constitution that created it. The US Constitution doesn’t grant the state legislature any extra-(state)constitutional lawmaking powers.