Forget Faithless Electors, That Sh*t Is Not Happening

Trying to evaluate whether a legal theory on Twitter is sound? First check the syntax. Is it screamed in ALL CAPS?

Is it being shouted out by someone who went to law school in the late '70s, but spent the past decade vomiting out nonsense on conservative radio?

If "yes" to both, then buyer beware. Errr ... BUYER BEWARE!

Reporter Barton Gellman warned about just such a gambit in The Atlantic last month.

According to sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly. The longer Trump succeeds in keeping the vote count in doubt, the more pressure legislators will feel to act before the safe-harbor deadline expires.

And you can see the Trump goons trying to execute this play in real time by casting doubt on the validity of the vote with patently ridiculous claims of vote fraud. The thinking — such as it is — is that they can use the courts to delay the counting long enough that states can't certify a slate of electors by "the first Monday after the second Wednesday in December," aka December 14, the day we have enshrined in federal law for the Electoral College to assemble and pick cast their ballots and pick a president.

Can't have an Electoral College if you create enough confusion to stop the selection of electors, according to that great legal scholar Thinking Man Dotgif.

But Trump's crappy lawsuits seem to be going nowhere. He already got laughed out of court in Michigan and Georgia today, and the "big win" in Pennsylvania amounts to allowing poll watchers to stand a little closer as the votes are tabulated. Meanwhile, the count is proceeding largely without a hiccup, and we should have more or less full results by tomorrow at the very latest in every swing state. So the nightmare scenario envisioned by Mr. Gellman doesn't look likely.

Hence, Mark Levin kicking it up another notch by suggesting that state legislatures simply ignore the vote entirely and appoint a slate of Republican electors to reinstall Trump as president. There's only one problem with this plan, though. As Just Security editor Ryan Goodman points out, it's completely illegal.

Indeed, Article II does say that "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 state legislatures have all delegated that authority to the citizens and state parties. So, in essence, when you vote, you're voting for a slate of electors, not directly for your preferred candidate.

Here's how that language looks on my state Board of Elections website:

In Maryland, political parties (or independent candidates) submit to the State's chief election official a list of individuals pledged to their candidate for President and equal in number to the State's electoral vote. The major parties usually select these individuals in their State party convention while third parties and independent candidates merely designate theirs.

Once elected, the presidential electors must take an oath before the Clerk of the Court of Appeals before casting their votes for the candidates for President and Vice President who received the plurality of the votes cast in the state. (Election Law Article, Section 8-505)

The electoral votes are then sealed and transmitted from each State to the President of the Senate who, on a designated date, opens and reads them before both houses of Congress.

Levin, an IRL lawyer, is advocating that state legislatures in Pennsylvania, Michigan, and Wisconsin ignore their own laws which provide for the selection of electors, and just pick their own guys. Which is not a thing, shut up!

Oh, you want that in legalese? Here, take it from the National Task Force on Election Crises legal primer:

Although the power to choose the manner in which electors are appointed means that state legislatures theoretically could reclaim the ability to appoint electors directly before Election Day, they may not substitute their judgment for the will of the people by directly appointing their preferred slate of electors after Election Day. Nor may they use delays in counting ballots or resolving election disputes as a pretext for usurping the popular vote. Doing so would violate federal law and undermine fundamental democratic norms, and it could also jeopardize a state's entitlement to have Congress defer to its chosen slate of electors.

If the legislators wanted to choose the electors themselves, they could have passed a law taking that authority back from their constituents. But they didn't, and now it's too late.

Ah, but what about faithless electors, you are asking. Couldn't those individuals hand-selected by the state party to represent them just mutiny and go for the other guy? Well, yes, it could happen. In fact it did happen in 2016, when 10 Democratic electors from Washington cast their votes for Colin Powell instead of Hillary Clinton. But the Supreme Court upheld a Washington law saying that a state could cancel a "faithless elector's" vote, and presumably the state parties have been a little more careful in the past four years choosing who gets an invite to the Electoral College party.

TL, DR: This isn't something to spend a lot of time worrying about, particularly if, as looks likely, Biden winds up with more than 300 electoral votes.

And that is all the time and energy we have to lawsplain Mark Levin's disingenuous blarping.



[Atlantic / National Task Force on Election Crises]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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