Biden attorney: Legislatures can’t replace electors — even if Trump cuts a deal for it

Will a meeting between Donald Trump and the two Republican leaders of Michigan’s state legislature result in a deal to invalidate the state’s election results? That’s certainly the concern expressed as House Speaker Lee Chatfield and Senate Majority Leader Mike Shirkey arrive at the White House, although both Chatfield and Shirkey have previously rejected the idea. Democrats in Michigan ripped the pair for meeting with Trump under the circumstances, but Chatfield said when the president calls, you answer:

Even if this seems like an odd time to get an invitation, don’t expect anything much to come of it, says Bob Bauer. The legal adviser to the Joe Biden campaign argues that nothing can come out of it. The US Constitution only allows state legislatures to choose the method of appointing electors to the Electoral College. And once they have chosen the method, they’re essentially stuck with the result:

Bob Bauer, a legal adviser for President-elect Joe Biden’s campaign, said Friday it’s “not possible” for the Republican-controlled Michigan Legislature to redirect the state’s electoral votes to President Donald Trump.

During a briefing for Biden’s campaign, Bauer blasted the Republican president for holding a meeting with the Republican leaders of the Michigan House and Senate on Friday afternoon as the state prepares to certify its election results as early as Monday. …

“The popular vote governs,” he said of Michigan. “That was the system in place on Nov. 3 and that is the system that is going to produce the slate of Biden-Harris electors.”

Trying to change the fact is “not possible” and “not legal,” Bauer said. It “cannot happen,” he added. Likewise, Bauer said any attempt to delay the certification of Michigan’s votes would ultimately not be successful.

Article II Section One does give each state the authority to choose their process:

Each 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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

Bauer argues that Michigan — and every other state — had already directed the manner of appointing electors: a statewide popular vote. Most states use winner-take-all policies for those appointments, but two (Maine and Nebraska) allow for split electors based on congressional districts. Either way, the “Manner” in which electors are appointed has already been chosen — and executed.

The time to choose a different manner would have been before Michigan held a statewide election for that purpose. To change that manner after an election would not just violate Article II Section One but also the due-process clause of the Fifth and Fourteenth Amendments, Bauer argued, as well as the Electoral Count Act and its Safe Harbor provision:

The federal Electoral Count Act governs how state officials can assign and certify electors. There is a “failed elections” mechanism that would allow states to choose new electors if the state’s voters did not decide on a presidential choice, and what qualifies as a “failed” election may be up for debate. Another provision of the law, called the “safe harbor” provision, requires electors to be chosen according to laws enacted before Election Day, and any disputes over those laws or the selection process must be completed before Dec. 8.

“Even if they were to ignore the federal statute, disregard that fact that Nov. 3 is behind us, and attempt by some mechanism here to send Trump-Pence electors to replace the Biden-Harris electors or to compete with them before the Congress, they couldn’t do that either because they would be violating the Constitution,” Bauer said. “The Constitution guarantees the right to vote — and the constitutional due process clause. And that’s presumably why Republican state legislative leaders have said in Pennsylvania, as well as in Michigan, that they wouldn’t do that.”

That does have its own loopholes, though. In 3 USC 2,  the law does allow legislatures to appoint electors — but only if their elections result in “a failure to make a choice on the day prescribed by the law,” ie, Election Day. That would require an intervention before a state certified an election, which is why Trump’s team wants to block those moves. (Too late in Georgia now.) However, such a move then negates the Safe Harbor rule, which according to 3 USC 5 only protects electors from challenge if they are appointed “by laws enacted prior to the day fixed for the appointment of the electors.” If legislatures appoint them directly after a popular vote, their electors run a high risk of being excluded from the vote in Congress. And this also clearly shows that the law and its interpretation of the Constitution favors sticking with the manner initially chosen by states rather than post-election legislative interventions.

But let’s say for the sake of argument that Trump convinces Shirkey and Chatfield to disenfranchise the voters on whom they rely for their very jobs. What then? Trump would pick up 16 electors, but not for long. The House would almost certainly vote to reject those electors, which only takes a majority vote and is not based on state delegations. (That’s only for the election itself in the unlikely event that the Electoral College can’t settle it.) Michigan’s election wouldn’t count, and Joe Biden would have only, er … 290 electors, more than enough to win. Trump would need more states to sabotage their own voters.


The Michigan effort is among multiple last-ditch tactics Trump and his allies are using to challenge his defeat. His team also has suggested in a legal challenge that Pennsylvania set aside the popular vote there and pressured county officials in Arizona to delay certifying vote tallies. At the White House, discussions were underway about extending an invite to Pennsylvania’s Republican legislative leadership as well.

Yeah, but even with Michigan and Pennsylvania tossed aside, Joe Biden still has 270 Electoral College votes, meeting the threshold of victory. Trump would need three states to go along with such a strategy, then hope that House Republicans in Congress would stick with him in a state-delegation vote to settle the 2020 election — assuming that the states don’t certify their results first and take the matter out of the hands of the legislatures in the first place. And Trump’s not popular enough in Arizona to expect that kind of loyalty to prevail over the duty to the voters in this election, needless to say.

This is an absurd exercise, in other words, and not just absurd but patently offensive. It seeks to nullify state elections and disenfranchise millions of American citizens on the basis of unsubstantiated claims of widespread fraud, for which the Trump campaign has repeatedly failed to provide any evidence in court. And if they’re strategizing around this plan, then that’s as good a signal as any that they don’t have any evidence of fraud on a scale that would explain why an unpopular president lost an election. That makes this plotting all the more detestable.

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