Could a Southern state legislature hand Electoral College delegates to Trump?
Twenty years ago, a presidential election was effectively decided by the U.S. Supreme Court in Bush v. Gore. There are now concerns that the court, which today includes three justices who served as Republican lawyers in Bush v. Gore, is laying the groundwork to hand this year's election to President Donald Trump.
Before the Supreme Court intervened in the 2000 election, the Republican-led Florida House of Representatives passed a law assigning the state's delegates to George W. Bush, then the GOP governor of Texas. The leader of the Florida Senate, however, wanted to wait until the last minute before taking the decision out of voters' hands. Hours later, the U.S. Supreme Court shut down a state law-mandated recount, handing the election to Bush.
The court's decision noted that a state legislature could theoretically appoint delegates to the Electoral College rather than letting voters decide. Federal law allows the legislature to decide, particularly if the state hasn't made a decision by Dec. 8, the "safe harbor" for assigning Electoral College delegates.
A disputed presidential election this November could lead a state legislature to assert power to decide who won the presidential election in its state. Given the anticipated delays in counting all of the mail-in ballots, the results in some states might not be clear for days or even weeks.
If history is any guide, the early results on election night will likely favor Republicans, and the mail-in ballots counted later will likely favor Democrats. When this happened in a U.S. Senate race in 2018, Trump joined other Republicans in making unfounded claims of voter fraud. Trump has refused to say that there will be a peaceful transfer of power if he loses in November, and he has falsely described the widespread use of mail-in ballots during a deadly pandemic as fraud.
Most Southern states will begin counting mail-in ballots before Election Day. But in battleground states, the outcome could be unclear for days. Some Republican state legislators have already met with the Trump campaign to discuss the possibility of intervening if the results are contested.
If a state doesn't choose Electoral College delegates by Dec. 8, the legislature would have a strong case for intervening to pick delegates. But Congress would have to agree to accept any delegation submitted after the safe harbor date.
- Nov. 3, Election Day. In the coming weeks, states certify their election results and assign delegates to the Electoral College.
- Dec. 8, Safe Harbor. If a state's results are contested, the state has until Dec. 8 to settle the dispute in order for Congress to automatically accept the resulting Electoral College delegates. If the state fails to make a decision on Election Day, the legislature could appoint delegates to the Electoral College. The state could then have two Electoral College "delegations," one chosen by voters and one picked by the legislature.
- Dec. 14, The Electoral College votes. The result could be unclear.
- Jan. 6, The new Congress convenes to certify the Electoral College votes. Vice President Mike Pence counts" the delegates' votes. If there's a dispute over a state's delegation, Pence could claim authority to decide which votes to count. Federal law is unclear. For any delegation submitted after Dec. 8, both chambers of Congress have to agree to accept it. If Democrats keep control of the House, as predicted, they can block any delegation submitted after the safe harbor date. If the House and Senate disagree, the state could receive no Electoral College votes. A federal court could intervene.
- Jan. 20, Inauguration day.
Disputes in Florida or Georgia?
Experts have identified Georgia and Florida as potentially disputed states where the legislature could step in. An election dispute in Georgia could drag on for weeks because state law allows a voter or candidate to "contest" the results of an election on the basis of fraud, a candidate's ineligibility, or illegal votes. If a contest is filed, Georgia Gov. Brian Kemp (R) could refuse to certify the election results by the Nov. 18 deadline, or a court could extend the deadline.
The Georgia Supreme Court has ruled that election contests can't be based on "mere speculation" and must allege "irregularity or illegality sufficient to … place in doubt the result of the election." For contests based on illegal votes, the court requires allegations to specify the number of ballots.
The current Georgia Supreme Court, however, might be unwilling to rule against Republicans. In 2016, the state legislature packed the court by adding two seats to create a conservative majority. The court now has a majority of Republican appointees linked to the far-right Federalist Society.
The Florida Supreme Court is also unlikely to block Republican efforts to game the election results. After the court ruled in favor of Democrats in Bush v. Gore, the legislature changed how judges are chosen, giving governors total control. Like Trump, DeSantis has outsourced his nominating process to the Federalist Society, leading to one of the nation's most conservative high courts.
In states with Democratic governors, such as North Carolina, Republican legislatures will have a much harder time disregarding the popular vote. Governors are usually in charge of certifying election results or assigning Electoral College delegates. And if they do that by Dec. 8, then Congress has to count the votes from that delegation.
In Florida, South Carolina, and other states, newly elected legislators are sworn in the day after the election. This means that if Democrats take control of the state house or state senate in those states, they could block any GOP effort to disregard the popular vote.
Experts agree that disregarding the popular vote becomes more unlikely if the election isn't close. Voting rights activists and Trump critics are urging voters to turn out in large numbers and ensure that they decide the outcome.
Federal court intervention
If a state legislature does assign its own delegation, the federal courts could order Congress or the state to recognize it. Four justices on the U.S. Supreme Court recently argued that state legislatures have exclusive authority to regulate presidential elections, and they would let federal judges overturn rulings by state supreme courts that protect voting rights.
In North Carolina, for example, state courts signed off on a settlement in a legal suit brought under state law that required modifications to the rules for mail-in ballots during the pandemic. But a federal judge ruled that the settlement violated the U.S. Constitution.
Before Barrett joined the Supreme Court, the justices split 4-4 on the issue of whether to intervene in state election law matters. This means the newest justice could be the deciding vote on whether to grant federal judges unprecedented power to overturn state supreme courts, which are supposed to have the final say on state law.
If Republicans dispute the election results, that could open the door to the U.S. Supreme Court intervening. The Constitution states that legislatures "direct" how presidential elections are conducted. But as Vox's Ian Millhiser explained, the Court has, for more than a century, interpreted the word "legislature" to refer to "whatever the valid lawmaking process is within that state."
In a recent dissent arguing for federal court intervention, Justice Brett Kavanaugh quoted at length from then-Chief Justice William Rehnquist's concurring opinion in Bush v. Gore, which was joined only by Justices Antonin Scalia and Clarence Thomas. Kavanaugh said, "The Constitution requires federal courts to ensure that state courts do not rewrite state election laws."
Kavanaugh also adopted Trump's framing of the mail-in ballot issue. He said "chaos and suspicions of impropriety … can ensue if thousands of absentee ballots flow in after Election Day and potentially flip the results of an election." But as Justice Elena Kagan pointed out in response, "there are no results to ‘flip' until all valid votes are counted."
The 2000 election was up in the air for weeks before the court's decision. The recounting of ballots was interrupted by Republican protestors banging on the windows and doors of election offices — the so-called "Brooks Brothers Riot" organized by Roger Stone, a Trump associate convicted of felonies for obstructing an investigation into Russian election interference before being pardoned by Trump. By contrast, Democratic candidate Al Gore's campaign refused to participate in a march organized by civil rights leader Rev. Jesse Jackson that drew thousands of protesters.
This time, voting rights advocates are preparing to take to the streets if a presidential candidate tries to steal the election from voters.
Billy is a contributing writer with Facing South who specializes in judicial selection, voting rights, and the courts in North Carolina.