State legislatures can steal the election
The Electoral College system is vulnerable to political attack
This article was originally written in the lead-up to the 2020 election. For those of you reading it after Election day but before electors meet and vote, see the section about retroactive rules changes.
Reportedly, Trump is exploring plans to appeal directly to state legislators in order to win the appointment of electors in key battleground states. The unfortunate reality is that this line of attack is constitutional. Not only that, this strategy has been employed in the past. State legislatures can and have stolen elections out from under the noses of voters.
There are three different ways in which state governments can steal a state’s slate of electors from a candidate who won more votes than their opponent. First, and most simply, they can cancel the election, as happened in New Jersey in 1812. Second, they can certify results that are known to be inaccurate, irregular, and incomplete; the 1876 and 2000 elections were both decided on the basis of counts known to be inaccurate. Third, they could simply order electors to change their votes; in Colorado in 2016, the state successfully compelled electors’ votes.
Cancelling the election
In 1812, New Jersey had two sets of elections scheduled: State level elections for the legislature in October, with federal elections following in November.
Federalists won a narrow majority of seats in the state legislature. On October 27th, 1812, the new majority was seated. On November 3rd, 1812, less than a week into their session, they passed a law that robbed voters of their next opportunity to vote.
The upcoming presidential election was canceled outright. House elections were postponed from November to January in order to allow the Federalists time to gerrymander the congressional districts in their favor. This early gerrymandering effort won the Federalists a 4–2 majority of New Jersey’s congressional delegation.
In place of a popular vote, the state legislature simply appointed the Federalist slate of electors. In defiance of this, a total of 1,673 residents of New Jersey cast ballots for presidential electors anyway. The Federalist slate of electors earned a single vote, meaning that they were elected while losing the (unofficial) popular vote by an astonishing 1,672–1 margin.
This was not an isolated incident. In the early days of the United States, both parties routinely changed how elections were carried out in order to try to gain a short-term advantage. Taking power away from voters entirely is a drastic move with serious political consequences.
The last gasps of a dying party
Cancelling a presidential election at the last minute was the desperate gamble of a party whose days were numbered, both in New Jersey and nationally.
Federalists lost control of the New Jersey’s state government in the next round of elections. In 1814, New Jersey’s House delegation went from a 4–2 Federalist majority to a 6–0 Democratic-Republican slate.
Nationally, James Madison was elected by a margin of 128 to 89. The electors from the key battleground state of Pennsylvania were decided by popular vote.
The next presidential election cycle in 1816 would be the last one in which Federalists attempted to oppose a Democratic-Republican president; Rufus King only won 32 electoral votes. In 1820, there were a few Federalist presidential electors who pledged to support James Monroe; in 1824, there was no Federalist presidential electors at all (and no Federalist party).
Certifying electors without votes
Have any presidential elections been decided not by voters on election day, but by government officials afterwards? Yes. Twice. In the case of the election of 1876, disputes over election results in Florida, Louisiana, and South Carolina were resolved by a special electoral commission. The commission decided in favor of Rutherford B. Hayes in a series of 8–7 party line votes.
In 2000, election results were uncertain in both New Mexico and Florida. New Mexico completed a statewide recount promptly and without controversy, and appointed Gore’s electoral slate. Florida did none of these things.
Bush v. Gore
The official count in Florida included numerous irregularities in the administration of the election, from poor ballot design to voter roll purges. An official recount was halted partway through, with Bush ahead by a statistically insignificant but politically significant margin of a few hundred votes. Republicans in the state government actively obstructed efforts to complete the recount efficiently or at all.
The Supreme Court ruled that in spite of the fact that Florida’s authorities were unwilling to figure out which candidate had actually earned more votes, they were nevertheless able to appoint a full slate of electors based on inaccurate returns. The precedent set by Bush v. Gore is that state governments can certify a victor even when the true results are uncertain because the state government is actively resisting a recount.
In hindsight, it is reasonably clear that if Florida had counted all votes in the state accurately on Election Day, Gore would have won the state’s electoral votes and become president. This also would likely have occurred if the state government had made a full and diligent effort to try to reach an accurate count of all ballots before electors met.
States can dictate electors’ votes: Colorado 2016
In Colorado in 2016, Michael Baca, one of the Democratic electors appointed as a result of the presidential election, was removed from office. His vote for John Kasich was retroactively canceled, and he was replaced. This case was appealed up to the Supreme Court, which ruled that states had the power to dictate how electors could vote. Succinctly, to quote Elena Kagan:
Article II and the Twelfth Amendment give States broad power over electors, and give electors themselves no rights.
In particular, states have the power to bind electors to vote for a particular candidate; and, if they vote differently from how the state instructs them, the state may remove electors after their appointment, retroactively cancel their votes, and replace them with new electors. It is presumed that this power will be used simply to enforce pledges to support the winner of the popular vote.
There are several key factors that complicate attempts by state legislatures to steal an election.
State executives play several key roles in the scenario of a contested election. Authority over the officials counting and certifying votes falls in the hands of either the governor or secretary of state. Governors also have the ability to veto laws, and a special federally-designated tiebreaking authority when it comes to disputed tiebreaking election.
The Electoral Count Act of 1887 grants governors tiebreaking authority of uncertain scope because of how the disputed election of 1876 was resolved. South Carolina, Louisiana, and Florida all had multiple slates of electors chosen for the Electoral College; the slate backed by the Republican governors was the slate accepted by the electoral commission appointed to resolve the crisis. The Electoral Count Act enshrined this precedent into law.
In four key battleground states with Republican state legislatures (Wisconsin, Michigan, Pennsylvania, and North Carolina), the governor and secretary of state are Democrats. Whether or not this prevents state legislatures from acting like the Federalists of New Jersey in 1812 depends on a key Constitutional ambiguity.
The Constitution explicitly delegates power over the rules of appointment of electors to the “legislature.” This seems straightforward, but in practice, there are two different legal interpretations for what “legislature” means. It could refer to directly to the legislative assemblies themselves, or the state’s legislative apparatus operating under the rules set by the state (which subjects laws to a possible veto by the governor etc).
Retroactive rules changes
Another major complication is the question of when the state legislature needs to act in order to steal the election legally. Some experts believe that states cannot retroactively change the rules; that is, if a state attempted to cancel the election after November 3rd, it would be an illegal attempt to choose electors at at improper time, as Congress can set the date on which electors are chosen.
Similarly, the boundaries of states’ power of dictation and removal, described in the Chiafalo case, also have yet to be tested. Retroactively changing the rules after the date set for electors’ appointment might exceed states’ power over electors for a similar reason.
An attempt to change the rules retroactively would make it very likely that the Supreme Court would decide the election. It is difficult to predict Supreme court decisions, especially when precedent is thin. The closest precedent to state legislatures retroactively deciding to throw out the results of an election came in 1876.
In Florida, Louisiana, and South Carolina, Democratic state legislatures backed the Democratic electoral slate following contested election results while the Republican governors backed the Republican electoral slate. Both sides claimed to have won more legally cast votes while accusing the other of fraud. State legislatures lost; the Electoral Commission appointed to resolve the issue decided this by an 8–7 party-line vote. As a direct result, Rutherford B. Hayes was declared the victor of the 1876 election.
The penalty paid
The main reason why Republicans might not want to try to take power away from voters in Texas, Arizona, Florida, Iowa, Ohio, and other potentially competitive battleground states is that it will probably cost them control over the state government — just as it cost the Federalists in New Jersey after the 1812 election.
Similarly, as in the case of 1812, even succeeding on the state level may not be enough to change the outcome of the presidential election. If Trump does badly enough nationally that he needs Republicans in Texas’s state legislature to secure Texas’s electoral votes before Election Day, it’s very unlikely that he will be able to win a majority of electors.
This is a known flaw of the Electoral College
The flexibility of the Electoral College is sometimes billed as a virtue by those few experts who defend the system. It’s also a significant weakness. The tradition of holding a popular vote does not prevent state legislators from being fickle and seizing power for themselves, undermining the legitimacy of an election that has already begun.
The Electoral College has evolved, under great political pressure, to a system that is mostly a chaotic version of a popular vote. However, it is prone to failures, especially in times of crisis. Its flexibility gives it a uniquely large range of untested failure modes.
We know much more now about how democratic elections work than when the Federalists and Democratic-Republicans were experimenting with different modes of choosing presidential electors. It’s time to modernize and move on from the Electoral College.