The Direction of America is in the Hands of State Legislators
Many Americans don’t seem to be fully apprised of how we elect the president of “these United States.” Some, including one Hillary Rodham Clinton, rail at the very idea of the Electoral College. Such people think the president should be elected by the People, in what’s called the “popular vote.” But know this: the Electoral College did not choose the president in all of our elections.
Election Day, the next Tuesday after the first Monday in November, is when the People go to the polls and vote for the president. It used to be that just about everyone voted on Election Day, but now we have “no excuse” mail-in voting. There was a huge increase in the use of mail-in ballots in the general election just concluded. So the states were conducting a huge experiment in voting during what some think of as the most consequential election of our lives. But even in clear landslides, such as those won by Reagan and Nixon, the story isn’t over with Election Day, as there are several more stages of the election process.
After the states certify the results of their popular votes, they appoint the electors to the Electoral College. This is done by the state legislatures, and the authority for it comes from Article II, Section 1, Clause 2 of the Constitution, which begins thus: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”
What’s interesting about this stage is that the state legislatures do not have to “ratify” (that is, rubberstamp) the popular vote in their states. They have the power to select any slate of electors they want, including those who would vote contrary to the just-concluded popular vote. Indeed, the power of state legislatures to appoint electors to the Electoral College is seen as a plenary power. That means it is absolute, unlimited, and not even subordinate to state laws.
The absolute power of state legislatures to appoint any slate of electors they see fit was articulated by the U.S. Supreme Court in 1892 in McPherson v. Blacker. There are two iterations of “plenary” in the decision, including: “…the practical construction of the clause has conceded plenary power to the state legislatures in the matter of the appointment of electors.”
That position was confirmed in Bush v. Gore (2000), where “plenary” is used but once, namely in the second sentence of section II,B: “This is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 35 (1892), that the State legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution.”
If the state legislatures were to select electors who awarded 270 electoral votes to, say, the 2020 candidate of the Libertarian Party, whoever that is, then that’s who would be president, and if the People didn’t like it, that’s though. Some might find that undemocratic, even monstrous, but it is a safeguard against electing someone whom we discover late in the process to be unfit, such as someone sinking into senility, (like you know who).
One snag with the Electoral College is the possibility of faithless electors. That is, electors who don’t vote the way they’re supposed to. But this, too, can be seen as a safeguard, when damning information about a candidate emerges at the last minute. (Here’s a useful article at National Conference of State Legislatures that includes a schedule of this year’s important dates.)
But the process may still not be over, for if the Electoral College cannot award at least 270 votes to a candidate, then the election of the president in thrown into the U.S. House of Representatives in what’s called a “contingent election,” (the presidential election of 1876 wouldn’t qualify as a contingent election, as it was decided by a special commission). We’ve had a total of three contingent elections for president over our entire 232-year history, in 1801, 1825, and 1837.
Throwing the 2020 election into the U.S. House is one of the terrific ideas floated by Jay Valentine at American Thinker. In the week starting with Nov. 9, AT ran five of Jay’s articles on succeeding days, here, here, here, here, and here. (I’ve been contributing to AT for more than a decade, and I don’t recall anyone getting the top spot on the Articles list for five days in a row, nor do I even recall anyone getting run at all for five days in a row. BTW, if you read the first article early, you might have missed an interesting Update by Andrea Widburg.)
Despite the brilliance, bravura, and brio of Jay’s bracing idea, he wasn’t the first to broach it. On March 13, Slate ran an article by Mark Joseph Stern that also touches on the role of state legislatures. Although Slate may be progressive, the article is worth reading.
Some might contend that were state legislators to ignore the People and supply their own electors that they would be “nullifying” the popular vote. But America is not a pure democracy, it’s a republic. Another type of nullification that happened this year was when the Pennsylvania Supreme Court overrode the state legislature and usurped its authority. (Regardless of what Scotus does, the PA legislature should impeach and remove Justice Max Baer, the author of the unconstitutional opinion, just to establish a precedent.)
Inasmuch as November this year has only one Friday the 13th, National Review must have thought it appropriate to run a counterargument to state legislatures exercising their constitutional power. Rich Lowry doesn’t present a very compelling case, but he does bring up the Electoral Count Act of 1887.
If state legislators actually got up on their hind legs and overrode the popular vote in their states by appointing their own electors, it would create a delicious irony. For it would put Democrats, like Hillary Rodham Clinton, in the position of having to defend the Electoral College they despise. Yum!
But nullification would enrage some and might lead to civil unrest. State legislators would therefore want to justify their decisions by stating the reasons for their departure from the usual. One reason would be that they cannot take part in electing a president who displays such obvious infirmities, including incipient senile dementia. They might also say that because of the uncertainty of the vote counts due to fraud as well as other irregularities, that they feel the election is irredeemably tainted, and therefore needs to be decided by the House.
The issue for state legislators is not whether they suspect fraud swung the election to Joe Biden. Rather, the issue is Joe Biden, and whether or not that desiccated mummified geezer is fit to be president. The issue is whether they want to see America taken in the direction Biden would take her. So state legislators have a choice, they can rubberstamp the popular vote or they can toss the decision to the House, a body that is directly chosen by the People.
State legislators may want to pass the buck, but they are the ones who have the responsibility to appoint electors to the Electoral College. The fate of the nation is in their hands, whether they like it or not.
Jon N. Hall of ULTRACON OPINION is a programmer from Kansas City.
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