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All of a sudden from @BartonGellman's excellent @TheAtlantic piece, people are learning that we only get to vote for President because state legislatures give voters that right, and they can take it away. The risk of this happening in 2020 is not new but also not likely. /1
Here's @mjs_DC writing about this issue in March, and I've picked up on this theme in a number of my writings about the risks of the election with extensive normbreaking and constitutional hardball. /2 https://slate.com/news-and-politics/2020/03/trump-cancel-election-day-constitution-state-electors-coronavirus.html
The fact that we don't have a direct right to vote for President in the Constitution is a travesty (just like the potential for faithless electors to change electoral outcomes). In the long run we need constitutional change. /3 https://www.nytimes.com/2020/06/29/opinion/sunday/voting-rights.html
But what about the short term risk that Republican legislators in key swing states would take away the right to vote for President and appoint electors directly? It's not a big risk (but it is still A risk) for a few reasons. /4
First, states have ALREADY started voting, and that means state legislatures have already chosen the "manner" for choosing presidential electors this season. I don't see how state legislators take it back now legally. /5
The play instead is more complex, and I lay it out in my @Slate piece yesterday. The argument of the legislatures would be that vote count is SO uncertain/marred by fraud that we don't know what the voters want so we are choosing electors directly. /6 https://slate.com/news-and-politics/2020/09/trump-plan-supreme-court-stop-election-vote-count.html
This play may not work for a number of reasons.
1. Some states have Dem governors who would reject the move. There's a dispute what role governors play here, but better argument is they can veto (affecting a state like PA). See fn 13 of this article /7 https://www.liebertpub.com/doi/pdf/10.1089/elj.2020.0646
1. Some states have Dem governors who would reject the move. There's a dispute what role governors play here, but better argument is they can veto (affecting a state like PA). See fn 13 of this article /7 https://www.liebertpub.com/doi/pdf/10.1089/elj.2020.0646
2. Even in states with unified control like Florida, Florida legislators would incur the wrath of voters and national protests (and potential violence) for seeking to disenfranhchise voters in this way. And they'd be calling their own elections into question. /3
3. If state election officials say Biden won but Fla. legislature said they were sending their own slate of electors for Trump, this would potentially end up in Court, or in the (likely Democratic) House of Representatives, triggering not necessarily a Trump win but a crisis. /9
The bottom line: The Gellman scenario is extremely unlikely. But it's not impossible. And it is just one of many ways that the 2020 elections can go south (as described in that @slate piece). We are dealing with a low risk of a real catastrophe, and that deserves attention. 10/10
