The AEI Press recently published a digitized fourth edition of After the People Vote, an invaluable primer that explains how our system of electing a president works. The short volume is a guide to the processes that kick in after Election Day. As we move ahead to January 20, I have asked John Fortier, the book’s editor, to answer some questions that have been raised about 2020, drawing on the book.

Bowman: On Wednesday, Axios.com executive editor Mike Allen raised
the specter of a long-shot scenario whereby Donald Trump and his team “could try to block secretaries of
state in contested states from certifying results. That could allow
legislatures in those states to try to appoint new electors who favor Trump
over Joe Biden.” Majority Leader Mitch McConnell downplayed the idea saying
there was “no reason for alarm.” John, do you share McConnell’s optimism? Could
this happen?

Fortier: While After the People Vote covers many of the intricacies of the
Electoral College, including the
appointment of electors by legislators, I share Majority Leader McConnell’s
view that there is “no reason for alarm” and that the likelihood of any of
these scenarios occurring in 2020 is nearly zero.

But it is worth thinking about several key
issues and controversies along these lines. First, it is true that the
Constitution gives state legislatures the primary role in deciding how electors
are selected. “Each State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors…” (Article II, Section 1). State
legislatures can even choose to forego a popular election altogether and
directly appoint their electors, as many states did in the early years of our republic.

A more difficult question is: Can a state
legislature still directly appoint electors if it has previously passed
election laws and set a popular election in motion? Some argue that once
the election has taken place the legislature may not then directly appoint, as
it has already chosen its method of selecting electors by prescribing in law
for an election. But others hold that the legislature never gives up its
power to directly appoint electors. And it is unclear whether any other
institution could stop a determined legislature from directly appointing
electors. In this case, the slate of electors would cast its votes for
president, and the results of that vote along with perhaps another competing
slate of electors appointed by a governor might make it to January 6 when
Congress counts the votes and figures out which slate of electors is
valid. 

If we did receive two sets of electors from a state and that state made the difference in the Electoral College, then we would face one of the most difficult scenarios to resolve. The 1876 election followed this scenario, and it was arguably our most drawn out and contested election, with the winner of the presidency not decided until the day before the Inauguration. Since 1876, we have passed a federal law that governs the counting of electors, but there are some ambiguities in the law and there is some question as to whether Congress would have to follow the law in counting electoral votes. This would be a scenario that we would hope to avoid at all costs, but, as I said at the start, I believe the directly appointed elector scenario will not happen in 2020.

The post Can state legislatures directly appoint their own electors? appeared first on American Enterprise Institute – AEI.