COULD THE STATE LEGISLATURES IN MICHIGAN, PENNSYLVANIA, WISCONSIN, FLORIDA, NORTH CAROLINA, AND ARIZONA SELECT THEIR STATES’ ELECTORS FOR PRESIDENT, OVERRIDING THE ELECTION RESULTS HELD ON NOVEMBER 3?
A U.S. SUPREME COURT DECISION ON AN HISTORIC MICHIGAN CASE BACK IN 1892
MAY HOLD THE KEY!
A recent article in The Atlantic magazine raised the question of whether “rogue” state legislatures in half a dozen “swing” states could convene after the Nov. 3 election and award their states’ Electoral College votes to a presidential candidate who had not won a majority or plurality of their states’ popular vote.
Wait! They couldn’t do that, could they?
Well, yes, it appears they could, and all because of something that happened in Michigan nearly 130 years ago.
All six states are considered battleground states in the 2020 Presidential election. Donald Trump carried all six states in 2016 against Hillary Clinton. All these states were won by Trump by less than a 4% margin: Arizona 3%, Florida 2%, North Carolina 4%, Michigan >1%, Pennsylvania >1%, and Wisconsin>1%. All six battleground states currently have both chambers of their state legislature controlled by Republicans.
President Trump has said he may not accept the results of the election if he loses. He asserts that, if he loses, the election will have been “rigged.” He claims mail-in voting is fraudulent. Absentee voting, on the other hand, must be OK, since he and his family members have a long history of absentee voting in New York. Currently, he and Melania vote absentee in Florida.
Trump and his Democratic opponent, Joe Biden, have both assembled armies of election lawyers to handle all election-related contingencies.
One legal battlefield Republicans appear to be focusing on is using their Republican state legislative majorities to determine their state’s electoral college votes.
Republicans are dusting off the 1892 U.S. Supreme Court decision in McPherson v. Blacker, 146 U.S. 1. The opinion was released on October 17, 1892, just 14 days after the Supreme Court had convened for its 1892-1893 term on the first Monday in October. The case had been argued only days before, on October 11. In haste, the Supremes then issued their opinion, only 22 days before election day, November 8, 1892. That election would be a rematch of the 1888 election between Republican President Benjamin Harrison and Democrat ex-President Grover Cleveland. Harrison in 1888 defeated the incumbent Cleveland in the Electoral College, even though Cleveland won the nationwide popular vote.
McPherson v. Blacker, on appeal from the Michigan Supreme Court, concerned a law passed in Michigan (the Miner Law, named after its state House sponsor, Democrat John Miner of Detroit) in 1891 by a Democratic-majority legislature and signed by a Democratic governor (Edwin Winans) to award each of the state’s electoral votes to the winner of each Congressional district, eliminating the practice up till that time of having the statewide winner take all of the state’s electoral votes, which in 1892 would be 14. McPherson, the original plaintiff, had been selected to be a Democratic elector in 1892 from one of those Congressional districts. Blacker was Michigan’s Secretary of State.
After the 1892 election, Michigan would go on to award Cleveland 5 electoral votes and Harrison 9 electoral votes, even though Harrison easily carried Michigan and would have won all 14 of Michigan’s electoral votes under the “old system,” as he had in 1888. But Cleveland did better elsewhere in the country and reclaimed the presidency, winning both the electoral college and the nationwide popular vote.
In 1893, the Michigan Legislature, now with Republican majorities, repealed the Miner law. Ever since, Michigan has awarded all its electoral votes to the winner of the statewide vote.
The 1892 election was over, but the high court’s decision had been momentous. McPherson v. Blacker was the first U. S. Supreme Court decision to consider the constitutionality of the selection of presidential electors. The majority opinion, written by Chief Justice Melville Fuller, upheld the Michigan law holding that the 14th Amendment does not require state legislatures to appoint their presidential electors based on the popular vote. State legislatures have “plenary” power (complete and absolute power to act on a particular issue, with no limitation) to allocate their electors however they want.
The opinion also held that Article II of the U.S. Constitution constrains the ability of each state to limit the ability of state legislatures to decide how to appoint their electors.
The ability of states to determine the selection of their electors was reaffirmed two decades ago in Bush v Gore, citing the McPherson v. Blacker precedent in a concurring opinion written by Chief Justice William Rehnquist.
Incumbent Republican state representatives seeking re-election this year (state senators are not on the 2020 ballot, their 4-year terms do not expire until 2022) may expect to be asked by the media and at voter forums if they would vote in the lame duck session of the Legislature to award Michigan’s 16 presidential electors to Donald Trump even if Joe Biden receives more popular votes in Michigan. They can expect the Trump campaign and their Trump constituents will assert that mail -in ballots have corrupted the election because the Democratic Secretary of State, Jocelyn Benson, sent unsolicited absentee ballot applications (not the ballot itself) to everyone on the state’s qualified voter list. Will Republican legislators follow Trump’s lead on mail-in voting and name Trump electors?
Let the litigation begin.
The 16 electors in Michigan will vote at the state capitol in Lansing in the state senate chambers on December 14, and those ballots will be sent to Washington, D.C to be formally tallied and announced before a Joint Session of Congress this coming January 6, 2021.