{"id":276051,"date":"2020-11-20T06:33:24","date_gmt":"2020-11-20T11:33:24","guid":{"rendered":"https:\/\/canadianinquirer.net\/v1\/?p=276051"},"modified":"2020-11-20T06:33:24","modified_gmt":"2020-11-20T11:33:24","slug":"trump-invitation-to-michigan-lawmakers-could-spark-state-and-federal-political-crisis","status":"publish","type":"post","link":"https:\/\/canadianinquirer.net\/v1\/2020\/11\/20\/trump-invitation-to-michigan-lawmakers-could-spark-state-and-federal-political-crisis\/","title":{"rendered":"Trump invitation to Michigan lawmakers could spark state and federal political crisis"},"content":{"rendered":"
\"\"<\/a>
FILE: President of the United States Donald Trump speaking at the 2017 Conservative Political Action Conference (CPAC) in National Harbor, Maryland. (Photo<\/a>: Gage Skidmore\/Flickr<\/a>, CC BY-SA 2.0<\/a>)<\/figcaption><\/figure>\n

The state of Michigan, and the United States as a whole, may face a political crisis brought on by President Donald Trump\u2019s continuing efforts to undo the 2020 election results.<\/p>\n

On Nov. 19, the president invited Republican lawmakers from Michigan<\/a> to the White House, apparently to pressure them<\/a> to change the election<\/a>\u2019s outcome in their states<\/a>. Michiganders voted 50.6% to 47.8%<\/a> for Democrat Joe Biden over Trump.<\/p>\n

Media reports indicate that even before the election Trump\u2019s campaign was already considering asking some of the 29 state legislatures with Republican majorities<\/a>, in charge of a total of 300 electoral votes, to depart from current practice in choosing their Electoral College delegates. The request would be for those bodies to select Trump electors and order them to cast their ballots for the president<\/a>, regardless of the candidate the states\u2019 voters actually preferred.<\/p>\n

A similar possibility arose in 2000, when the Republican majority in the state\u2019s Legislature claimed to possess \u201cbroad authority to allocate Florida\u2019s electoral votes<\/a>,\u201d and came close to doing so.<\/p>\n

As a student of American democratic politics<\/a>, I believe that while there are some legal barriers that could limit the ability of legislative bodies to disregard popular vote totals in the allocation of their electoral votes, the most important constraints would be political.<\/p>\n

A president picked this way by state legislatures would likely have his legitimacy questioned \u2013 and the legislatures would also likely face the public\u2019s ire.<\/p>\n

A base in the Constitution<\/h2>\n

Article II of the U.S. Constitution leaves decisions<\/a> about how electors will be chosen to state legislatures: \u201cEach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.\u201d<\/p>\n

In the country\u2019s early years, some legislatures did not trouble themselves to involve their citizens in choosing the president. When George Washington was first elected in 1788, the legislatures of Connecticut, Delaware, Georgia, New Jersey and South Carolina appointed electors directly<\/a> without a popular vote. The New York state Legislature did not even choose electors<\/a> because lawmakers couldn\u2019t resolve the split between its two chambers, which were controlled by different parties.<\/p>\n

The first several presidential elections followed a mixed pattern<\/a>, with some states using popular elections to direct the choice of electors, while others left that choice solely to their legislatures. As political parties jockeyed for advantage, states changed their systems often.<\/p>\n

No state legislature has ever appointed a slate of electors supporting a candidate who lost the state\u2019s popular vote. As the Supreme Court noted<\/a> in the recent \u201cfaithless electors\u201d case, by 1832, every state except South Carolina had passed legislation saying that the popular vote would determine the choice of its electors.<\/p>\n

In 1876, newly admitted Colorado became the last state whose Legislature chose electors on its own. Today the laws of every state give voters the final say<\/a> about which party the electors should represent.<\/p>\n

The Supreme Court\u2019s view<\/h2>\n

State legislatures have given up the power to choose electors, but the Supreme Court has on several occasions recognized their right to take it back.<\/p>\n

The first decision was in 1892, when the court declared that \u201cthe legislature possesses plenary authority to direct the manner of appointment<\/a>, and might itself exercise the appointing power by joint ballot or concurrence of the two houses, or according to such mode as it designated.\u201d<\/p>\n

More than 100 years later, the court revisited the question in Bush v. Gore<\/a>. In a little-noticed but highly consequential passage<\/a>, the majority wrote that a state legislature \u201cmay, if it so chooses, select the electors itself<\/a>,\u201d and it retains authority to \u201ctake back the power to appoint electors,\u201d even if it formerly let the popular vote make the decision.<\/p>\n

In a July 2020 decision, the Supreme Court again declared that Article II gives state legislatures \u201cthe broadest power of determination<\/a>\u201d over who becomes an elector. However, the majority opinion did suggest that power might be subject to \u201csome other constitutional constraint<\/a>.\u201d<\/p>\n

What are the limits?<\/h2>\n

The court has declared that states have the right to take back the choice of electors from the people \u2013 but has cautioned that they may not do so easily.<\/p>\n

When states give the voters control over electoral picks, they confer on them a \u201cfundamental<\/a>\u201d right, which is protected by other constitutional guarantees, including the due process<\/a> and equal protection<\/a> clauses.<\/p>\n

But it\u2019s not clear how strong<\/a> that protection might actually be. State legislatures would almost certainly have to pass a new law or resolution to make any change. In each state, a majority of legislators would have to agree. And, depending on the form of the enactment, it might or might not be subject to a governor\u2019s approval \u2013 or a veto override.<\/p>\n

Historically, courts have respected legislative decisions to change how a state appoints electors so long as the changes happen before the election happens, not after the ballots are cast<\/a>.<\/p>\n

[Insight, in your inbox each day.<\/em> You can get it with The Conversation\u2019s email newsletter<\/a>.]<\/p>\n

A matter of timing<\/h2>\n

Postelection changes<\/a> of the kind Trump is apparently contemplating<\/a> would cause confusion around two federal laws that directly contradict<\/a> each other.<\/p>\n

One law requires electors to be appointed on Election Day itself<\/a>. But all states abide by another law, the Electoral Count Act<\/a>, passed in 1887, which gives states up to 41 days<\/a> after Election Day to designate their slate of electors<\/a>. The conflict between these laws provides fertile ground for litigation.<\/p>\n

In the end, however, the most effective forces blocking state legislatures in Michigan or any other state from disregarding the popular vote may be political rather than legal.<\/p>\n

It is, after all, up to the people to hold their officials accountable for their actions.<\/p>\n

Yet in the country\u2019s current toxic political environment, it\u2019s not clear whether even an obvious effort to ignore the popular vote might nonetheless find support among some of the public, and some of their elected representatives too.<\/p>\n

This is an updated version of an article originally published<\/a> Oct. 1, 2020.<\/em>\"The<\/p>\n

Austin Sarat<\/a>, Associate Provost and Associate Dean of the Faculty and Cromwell Professor of Jurisprudence and Political Science, Amherst College<\/a><\/em><\/p>\n

This article is republished from The Conversation<\/a> under a Creative Commons license. Read the original article<\/a>.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The state of Michigan, and the United States as a whole, may face a political crisis brought on by President …<\/p>\n","protected":false},"author":44,"featured_media":231771,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[16,17],"tags":[],"class_list":["post-276051","post","type-post","status-publish","format-standard","has-post-thumbnail","category-news","category-news-w","mauthors-austin-sarat-amherst-college","mauthors-the-conversation"],"_links":{"self":[{"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/posts\/276051","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/users\/44"}],"replies":[{"embeddable":true,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/comments?post=276051"}],"version-history":[{"count":2,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/posts\/276051\/revisions"}],"predecessor-version":[{"id":276053,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/posts\/276051\/revisions\/276053"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/media\/231771"}],"wp:attachment":[{"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/media?parent=276051"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/categories?post=276051"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/tags?post=276051"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}