No, state legislators can't overturn an election after the fact, and Gorsuch and Kavanaugh didn't say so.


Photo credit: Office of the President-elect, Joe Biden, Twitter.

The New York Times front page this morning splashed a story noting that reporters have called election officials in each state and that they found no voter fraud, as alleged - with no evidence - by the Trump campaign. Donald Trump's allegations are absolutely falling apart in federal and state courts, people who sign the GOP's affidavits are recanting; the whole Trump effort to try to get votes thrown out through the courts is going just about as well as the Trump administration efforts to contain the spread of the coronavirus.

But, as some reports are noting, the Republicans have another nefarious strategy brewing. When they get turned away by the courts, they plan on asking Republican legislatures in states that Joe Biden won to overturn the results of their states' popular votes and appoint Trump electors instead, stealing the electoral college for Trump.

The theory springs from a theory advanced by Trump appointees on the Supreme Court, Brett Kavanaugh and Neil Gorsuch, who, in an concurring opinion in a case in October, noted that the Constitution grants to 'state legislatures' the power to enact the rules for selecting electors for their state. The implication many are drawing is that if that three other Justices were to concur with Kavanaugh and Gorsuch, it would mean that state legislatures can simply appoint electors whenever they don't like the results of a presidential vote in their state.

This is not true.

Yes, Article II, Section 1 of the Constitution does note that "Each State shall appoint, in such Manner as the Legislature thereof may direct," presidential electors. This is not, however a blanket grant of power to legislatures to simply change throw out the will of their voters. Why not?

Because each state legislature already directs the manner by which electors in that state are chosen. They do so by enacting state laws that govern this process. When the Constitution empowers a legislature - national or state - to do something that is not explicitly an oversight function or a function related to internal rulemaking, it does so through granting that legislative the power to make laws.

For example, Article I, Section 8 of the Constitution invests in Congress a whole bunch of express powers, such as the power to tax, to borrow money, to coin money, to constitute lower courts, to declare war, and to make uniform rules for the military, among other things. No one believes Congress can simply pass joint resolutions to enact these things without either the president's acquiescence or overriding the president's veto.

There is no case to be made that state legislatures, then, can simply appoint presidential electors without a full lawmaking process. And even the opinion from Gorsuch and Kavanaugh's, outlandish as it was, does not hint that it does so. The case in question was about whether a federal judge had the authority to extend mail-in ballot arrival deadline in Wisconsin. Kavanaugh and Gorsuch's opinion, which argued that even state courts do not have the power to extend such deadlines, was essentially stating when a state legislature creates laws about the selection of electors, that law supersedes any other state law that may be in conflict with it. That, once again, is a dangerous overreach of federal power into states and a violation of federalism, but even Gorsuch and Kavanaugh do not argue that a state legislature can simply skip the lawmaking process and dictate the appointment of electors, in effect nullifying existing state law.

It should be noted that Wisconsin, Michigan, Pennsylvania, and Nevada all have Democratic governors, who obviously won't allow any such foolery. And even Republicans were able to, by some hail Mary, pass such laws, it could not be applied to the current election due to the Constitution's prohibition against ex post facto laws (which means a law enacted today cannot be applied before today - and the election itself, on a date set by the Constitution itself, has already been conducted).

There is simply no legal avenue for Donald Trump - or his goons who control Republican state legislatures - to steal this election.