(Bloomberg Opinion) -- Let’s be clear: Any attempt by Republican state legislators to appoint their own set of electors — the people who will actually select the next president in the electoral college — in defiance of their states’ voters after the Nov. 3 election would be a flat-out attack on constitutional government. If it succeeded in keeping a defeated president in office, it would replace the rule of law with partisan power. It would, as political scientist William Adler put it, be “the end of the republic.”
This outlandish scenario now has to be taken seriously because President Donald Trump’s campaign and at least some swing-state Republicans are thinking about trying it, according to reporting from Barton Gellman in The Atlantic. The idea would be to claim without cause — serious claims with evidence to back them could be adjudicated in the courts, after all — that an actual vote count that extends past Election Day as mail-in ballots are reviewed is so fraudulent that the legislature has no choice but to step in:
The Trump-campaign legal adviser I spoke with told me the push to appoint electors would be framed in terms of protecting the people’s will. Once committed to the position that the overtime count has been rigged, the adviser said, state lawmakers will want to judge for themselves what the voters intended.
“The state legislatures will say, ‘All right, we’ve been given this constitutional power. We don’t think the results of our own state are accurate, so here’s our slate of electors that we think properly reflect the results of our state,’ ” the adviser said. Democrats, he added, have exposed themselves to this stratagem by creating the conditions for a lengthy overtime.
“If you have this notion,” the adviser said, “that ballots can come in for I don’t know how many days — in some states a week, 10 days — then that onslaught of ballots just gets pushed back and pushed back and pushed back. So pick your poison. Is it worse to have electors named by legislators or to have votes received by Election Day?”
Read the entire article for the ugly details of how such a scheme might actually play out. The bottom line is that it might work, it might fail, and it might plunge the nation into a nightmare.
What’s important, however, is that the Constitution doesn’t give state legislatures the power to pick their own electors in this fashion. It’s true that the states get to decide how to select their electors, and that one option used in the early days of the republic was for the state legislature, rather than the voters, to choose. But the states Republicans are said to be targeting — Wisconsin, Michigan, Pennsylvania, Florida, Arizona and North Carolina — have long-established law giving the voters the power to select electors. There is no justification, in law or the Constitution or democratic theory, for suddenly asserting that those laws don’t count just because the Republicans in those legislatures don’t like the results. That’s not how law works.
Gellman goes through a number of ways that the Trump campaign and the Republican Party may contest the election results. Some are more legitimate than others, although virtually all of them are unseemly at best. Many fall into the murky area in which parties and campaigns are within their rights to fight hard to win, even if it’s ugly. For example, parties certainly have the right to challenge ballots. It’s worse, but not illegitimate, to add to that a strategy of arranging to make voting difficult in any number of ways. It’s even worse to apply those strategies selectively, so that Democrats are more likely to have their ballots challenged than Republicans.
But these kinds of tactics probably fall under the category of stealing an election fair and square. Some of the other tactics, such as encouraging or even organizing Republicans to intimidate voters at the polls, are even worse, and those who pursue them should be prosecuted when they break the law. But as bad as they are, and I don’t mean to downplay them, these sorts of things are likely to have relatively small effects — keeping in mind that in close elections small effects can be decisive.
The idea of just throwing out election results if the legislature doesn’t like them? And we’re talking about the outgoing, lame-duck legislature, not the newly elected one, so that’s even worse. That’s flat-out tyranny. If the current government can ignore the results of elections by fiat, then it’s an authoritarian state.
The good news is that it’s possible that Republicans would not follow through on these plans. Florida Republicans were all over Twitter on Wednesday not only denying they would do any such thing, but calling the idea “totally crazy.” And, should the Democratic challenger Joe Biden win the election, it will be up to state parties and state legislators to resist whatever insanity Trump and his allies throws at them in terms of phony claims of fraud and baseless assertions that only votes tabulated on Election Day should count. It’s a good bet that Trump will cry election fraud if he loses; after all, he complained (without evidence) about fraud even when he won in 2016. And there’s no reason to expect Trump to abide by constitutional standards, since he’s regularly ignored those that he doesn’t like.
So the real issue if Trump loses will be the behavior of the Republican Party, particularly its elected officials. If pressed, would they choose democracy, or would they try to turn the nation into a self-perpetuating party dictatorship? I really wish I could be confident about the answer.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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