Electors , equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress ... [ emphasis added ]
“ The Electors shall meet in their respective States , and vote by Ballot for two Persons … which List they shall sign and certify , and transmit sealed to the Seat of the Government of the United States , directed to the President of the Senate . The President of the Senate shall , in the Presence of the Senate and House of Representatives , open all the Certificates , and the Votes shall then be counted . The Person having the greatest Number of Votes shall be the President …”
It ’ s not particularly ambiguous , even as clarified by the 12th Amendment and the Electoral Count Act of 1887 .
Neither mentions the will of the people , although the Electoral Count Act requires each state ’ s governor to certify the vote before passing it along to Washington , DC . And half of those states have Democratic governors .
Which brings us to the Supreme Court ’ s probable 2023 decision . As Robert Barnes wrote for The Washington Post :
“ The Supreme Court on Thursday said it will consider what would be a radical change in the way federal elections are conducted , giving state legislatures sole authority to set the rules for contests even if their actions violated state constitutions and resulted in extreme partisan gerrymandering for congressional seats .”
While the main issue being debated in Moore v Harper , scheduled for a hearing this October , is a gerrymander that conflicts with North Carolina ’ s constitution , the issue at the core of the debate is what ’ s called the “ Independent State Legislature Doctrine .”
It literally gives state legislatures the power to pre-rig or simply hand elections to the candidate of their choice .
As NPR notes :
“ The independent state legislature theory was first invoked by three conservative U . S . Supreme Court justices in the celebrated Bush v Gore case that handed the 2000 election victory to George W . Bush . In that case , the three cited it to support the selection of a Republican slate of presidential electors .”
That doctrine — the basis of John Eastman and Donald Trump ’ s effort to get states to submit multiple slates of electors — asserts that a plain reading of Article II and the 12th Amendment of the Constitution says that each state ’ s legislature has final say in which candidate gets their states ’ Electoral College vote , governors and the will of the voters be damned .
The Republicans point out that the Constitution says that it ’ s up to the states — “ in such Manner as the Legislature thereof may direct ” — to decide which presidential candidate gets their Electoral College votes .
But the Electoral Count Act requires a governor ’ s sign-off , and half those states have Democratic governors . Which has precedence , the Constitution or the Act ?
If the Supreme Court says it ’ s the US Constitution rather than the Electoral Count Act , states ’ constitutions , state laws , or the votes of their citizens , the scenario outlined above becomes not just possible but very likely . Republicans play hardball and consistently push to the extremes regardless of pubic opinion .
After all , the Constitution only mentions the states ’ legislatures — which are all Republican controlled — so the unwillingness of the Democratic governors of Michigan , North Carolina , Wisconsin and Pennsylvania to sign off on the Electoral College votes becomes moot .
Under this circumstance DeSantis becomes president , the third Republican president in the 21st century , and also the third Republican President to have lost the popular vote election yet ended up in the White House .
This scenario isn ’ t just plausible : it ’ s probable . GOPcontrolled states are already changing their state laws to allow for it , and Republican strategists are gaming out which states have Republican legislatures willing to override the votes of their people to win the White House for the Republican candidate .
Those state legislators who still embrace Trump and this theory are getting the support of large pools of rightwing billionaires ’ dark money .
As the highly respected conservative Judge J . Michael Luttig recently wrote :
“ Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine … and Congress amends the Electoral Count Act to constrain Congress ’ own power to reject state electoral votes and decide the presidency .”
I take no satisfaction in having accurately predicted — in March of 2020 — how Trump and his buddies would try to steal the election in January of 2021 . Or , how the Supreme Court would blow up the Environmental Protection Agency .
Trump ’ s January 6th effort failed because every contested state had laws on the books requiring all of their Electoral College votes to go to whichever candidate won the popular vote in the state . That will not be the case in 2024 . As we are watching , the Supreme Court — in collaboration with state legislatures through activists like Ginny Thomas — are setting that election up right now in front of us in real time .
We damn well better be planning for this , because it ’ s likely coming our way in just a bit more than two short years .
The Trial Lawyer x 71