Read this Article by Jerry H. Goldfeder, Special Counsel at Stroock & Stroock & Lavan, Teaches Election Law and the Presidency at Fordham Law School, and is the Author of the treatise Goldfeder's Modern Election Law.
With only several months before Election Day, a Change from Popular Voting to Legislative Fiat even in One State would be an Egregious Break from 145 years of History, Custom, and Expectation, and Modern Constitutional Jurisprudence.
There is Trump's vigorous Efforts to: Limit Mail-In-Ballots; the GOP’s $20 million Campaign to Recruit 50,000 Armed Volunteers to Challenge
“suspicious” Voters at Polling Places around the Country; or Trump saying he would Cancel or Postponing the Election, neither of which he can do.
Goldfeder is talking about the arcane U.S. Constitutional Provision that refers to State Legislatures’ Authority to decide who Picks Presidential Electors, the Folks who ultimately Elect the President.
As Hillary Clinton and Al Gore can attest, it is the Electoral College that Chooses the President, not the Voters, and the Federal Constitution gives Congress the Right to Schedule when they Meet. Congress has set this Date as the First Monday after the Second Wednesday in December or Dec. 14th in 2020.
But who chooses the Electors? For the First 100 years of our History, Voters sometimes went to the Polls to do so, but usually States gave this Decision to their Legislature or Governor. In fact, in the early days, States routinely Changed Procedures depending upon how they thought their
Favorite Presidential Candidate might fare under One Method or another. Since 1876, however, each State has empowered its Voters to choose the Electors, on Election Day, this year, Nov. 3rd. This has Not Changed in 145 years.
In 2000, during the Extended Recount in Florida, Gov. Jeb Bush (R) and his Legislative Allies almost Departed from this Long History and began the Process of Naming a Slate of Electors Pledged to George Bush (R), even after the Voters had gone to the Polls. This Extraordinary Gambit, rendered Unnecessary by the Supreme Court’s Decision in Bush v. Gore, is a Cautionary Tale for 2020.
Currently, there are 29 State Legislatures Controlled by Republicans, totaling 302 Electoral College Votes, 32 more than the 270 Required to Elect a President. If these States decided to Re-Write their Laws to Allow the Legislature to Directly Choose Electors, they could Simply hand the Election to Trump. Of these 29 States, however, Eight have Democratic Governors, who would presumably Veto any Attempt to Circumvent the Voters and have enough Votes to Stop an Override.
This would bring the Potential Game-Changing switches to 21 States, totaling only 214 Electoral College Votes, including several Swing States, such as: Arizona with 11, Florida with 29, Georgia with 16, Ohio with 18, and Texas with 38.
With only Several Months before Election Day, a Change from Popular Voting to Legislative Fiat even in One State would be an Egregious Break from 145 years of history, Custom, Expectation, and Modern Constitutional Jurisprudence. Plus the U.S. Supreme Court does Not like Changes that Affects an Election in the Year of the Election.
The U.S. Supreme Court Ruled that States can Choose whatever Method they want to Pick Electors, but it did so in 1892, which Preceded Modern Voting Rights Legislation and Court Decisions that Protect Voters from being Disenfranchised. Thus, it is highly Doubtful that such a Change in the 21st century would Pass Muster.
But who is to say that worried Supporters of the President wouldn’t Try to Upend Political and Constitutional Norms in this way. While there is already Sufficient concern about Voter Suppression without thinking about such Unheard of Scenarios, Voters, and All those who cherish Voting Rights, should nevertheless, be Watchful.
There is Two Supreme Court Cases, Chiafalo v. Washington and Baca v. Colorado, probing the Confusing Reality of America’s True Presidential Election, which does Not occur on Election Day, but later at the Electoral College by the Selected Electors.
Thirty-Two States and the District of Columbia compel Electors to Cast their Ballots for the Winner of the Statewide Popular Vote. The Plaintiffs in Chiafalo and Baca are “faithless electors” who sought to Buck these Laws in 2016 and Select a Different Candidate than the One Chosen by Voters of their State. They Argue that the Constitution Grants Electors the Right to Vote for Whomever they Want. In their View, the Statewide Vote is essentially Advisory and States have No Power to Punish Electors who go their Own Way.
A Majority of the Justices, perhaps All Nine, sounded Cautious and Sensible Enough, that they might Reject the Request to Allow Electors to Pick who they want. at result. Justices across the Ideological Spectrum seem to Recognize that this Particular Bomb could Blow Up in their Faces.
NYC Wins When Everyone Can Vote! Michael H. Drucker
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