Friday, November 20, 2020

Trump Lobbies Republican State Legislators to Override Will of Voters and Give Him a Second Term

Every four years, I watch the television coverage of the presidential election results come in.  The map of the United States gets colored red and blue depending on which party's candidates win particular states.  (Fun fact, did you know that Republicans used to be blue and the Democrats red?)  Next to the map is a tally of the electoral vote which changes as each state gets declared.  Then when a candidate gets to 270 electoral votes, the network declares that person to be the next President of the United States!  Game over!

If it were only that simple.

Contrary to what you see on election night, electors are not numbers.  When you go vote for President, you're not directly voting for that office.  You are voting for a slate of electors the President's party has named to vote for that person.  It is up to each state to decide how those electors are to be selected.  48 of 50 states have decided that whichever candidate wins its state, even if by one vote, receives all the state's electoral votes.  Two states - Nebraska and Maine - award two electors to the winner of the state and one for the winner of each congressional district in the state.

But, again, I've fallen into a shorthand in describing this process.  Again, electors are PEOPLE.  Winning the popular vote a state means those people the state party has picked to support you will be the ones casting ballots in mid-December in the state's capitol.  In the past, there has been scant attention to who these electors are.  Many times they are simply party regulars with free time on their hands.  High level people in the party did not usually want to be electors because it was simply seen as a ministerial job.  Anyone can rubber stamp the election winner in the state.

The United States Constitution provides that state legislatures (no mention of the governor's role) decides how each state's legislatures are to be assigned.  Some argue that once Congress utilizes its power to set the date for the election (the date of chusing the electors), and that election takes place, it's too late for legislatures to take back their authority.  On the other hand, Bush v. Gore (by a 7-2 vote) has dicta that says that "there is no doubt" that the legislature can "take back the power to appoint electors...at any time." There is no language in that case saying the legislature has to take back its power before the election takes place.

Nonetheless, this conflict is moot if there is a popular vote dispute within the state that is not resolved by the "safe harbor" date. Then state legislatures definitely get to decide the allocation of the electors.  That's why Rudy Giuliani and his crack team of lawyers are desperately trying to create disputed election results.  And that's also why Trump is now lobbying the GOP state legislative leaders in Michigan and Pennsylvania.  It is also why Trump made calls to the two Republican members of the Wayne County (Detroit) to try to get them to stop their certification of the results in that heavily-Democratic county.

Unlike Wisconsin, Arizona and Georgia, Biden won Michigan and Pennsylvania by comfortable popular vote margins.  But if Trump is somehow able to get those Republican legislatures to override the popular vote in Michigan and Pennsylvania, the electoral vote goes from 306-232 to 270-268.  That would leave Trump just one electoral vote shy of a win.

The Founders did not trust democracy.  They did not believe the average voter had the intelligence and information necessary to elect a President. They left that decision in the hands of electors, who they expected to be much more enlightened and responsible citizens, who would be elected to attend a convention at the state capitol. There they would debate about who would be the best President and cast their vote accordingly.  If no one received a majority of the electoral vote (which is now 270 of 538) at these electoral conventions, the United States House voting by delegation, would decide the election.

The Electoral College has never operated like a deliberative body.  Over the years, many states have tied the hands of electors to force them to vote for the popular vote winner.  Some states enforce this dictate through replacement of what is called a "faithless elector," i.e. an elector who does not vote to rubberstamp the popular vote winner in the state.  Other states fine the faithless elector or make it a crime to not vote for the popular vote winner.  Still other states impose no penalty at all on the faithless elector.  They are free to vote for whomever they want.  While "faithless electors" historically have been rare we actually had seven of them in 2016.

Earlier this year, the United States Supreme Court unanimously held that states can bind the vote of electors to the popular vote in the manner described above.  But that decision did not say states are not required to bind those electors to the popular vote.

While electors pledge to support their party's candidate if he or she wins the popular vote of the state, it does not take much imagination to see the Trump campaign seek out an elector or two to flip.  At 270 to 268, that elector would not even have to flip from Biden to Trump.  That Biden voter could vote for Hillary Clinton or Stacey Abrams or just abstain from voting.  The result would be the same - Biden would be one electoral vote short of a majority.  That would mean the election would be decided by the United States House, voting by state delegation.  Since Republicans have a majority of the House state delegations, that would mean a second term for President Trump.

I feared that would happen in 2000.  After the election, Bush led Gore 271 to 267 in the electoral vote.  But for Gore to win that vote he had to have three Bush faithless electors actually vote for him, not abstain or vote for a third person.  If Bush and Gore were both short of the 270, then the Republican-dominated House would have given the election to Bush.  For the record, in 2000 there was one faithless Gore elector from DC who abstained, lowering his total to 266.

All of what we're seeing happening in 2020, could have happened in 2000 but did not.  Why?  Because at the end of the day Bush and Gore, although motivated by ambition, were decent, honorable men who put their country first.  In 2020, Donald Trump puts Donald Trump first. If he has to burn down American democracy to be re-elected he is more than willing to do that.

OOP's short takes:
  • It's easy to laugh at the Rudy Giuliani show.  But there is also lot of sadness to it.  It's astonishing to think that that bumbling old man, a has been attorney handling a matter way over his head, was once a legendary prosecutor who, as U.S. Attorney for the Southern District of New York, cleaned the city of the organized crime that dominated the city until his tenure.  His success as prosecutor earned him two terms in the Mayor's Office, winning as a Republican in a city Democrats had come to dominate.  As Mayor, Giuliani was praised for his efforts in reducing crime in the city and guiding the metropolis through 9/11.  While some people rightly questioned his tactics, particularly when it came to crime reduction, no one considered Giuliani to be a joke and everyone took him seriously. If Giuliani would have retired from the public eye in 2001, they would have erected statutes commemorating his service to the city.  Instead Giuliani today has become a joke, his reputation sullied beyond repair.  Mark my words, some time in the not too distant future Giuliani is going to announce he has health problems, possibly something that affects the decision-making and executive part of his brain, the frontal lobe,  
  • It is likewise sad what is happening to L. Lin Wood, the once legendary trial attorney from Atlanta.  He appears to be having a meltdown and sadly doing it all in public, possibly forever ruining his reputation.  If you don't know about the direction Wood's career has taken check out his Twitter feed and read the lawsuit filed by Wood's former law partners in which they quoted at length from his emails and other communications.  Very sad.
  • I predict that when the Indiana General Assembly convenes they are going to draw a new congressional map so the state's congressional delegation is 8-1 Republican instead of 7-2.  The Democratic margin in the First Congressional District in northwest Indiana has declined enough that it can be divided into nearby GOP-dominated districts without endangering the election of Republicans in those districts.

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