By now, everyone should know that President Donald Trump’s strategy in contesting the result of the Nov. 3 general election has been to get “rogue” state legislatures in four “swing” states to convene and award their states’ Electoral College votes to a presidential candidate who had not won a majority or plurality of their states’ popular vote.
If Michigan, Pennsylvania, Wisconsin and/or Arizona could peel back the 306 electoral votes that Democratic nominee Joe Biden seemingly has amassed to less than 270, the election could conceivably be thrown into the U.S. House of Representatives, where Republicans, on a state-by-state “unit” basis, have an edge. If that happens, the GOP might “steal” the election for Trump.
Wait! They couldn’t do that, could they?
Well, yes, it appears they could, and all because of a U.S. Supreme Court decision on an historic Michigan case back in 1892.
Trump carried all four states mentioned above in 2016 against Hillary Clinton. This year, however, all these states were won by Biden by less than a 4% margin. All four of these battleground states currently have both chambers of their state legislature controlled by Republicans.
Trump has said he doesn’t accept the results of the election. He claims that the election has 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 Biden have both assembled armies of election lawyers to handle all election-related contingencies.
The main legal battlefield Trump is focusing on is using his party’s state legislative majorities to determine their state’s electoral college votes.
Rudy Giuliani, the former New York City mayor who is now of counsel to Trump, appeared before a state House committee meeting in the state capital of Michigan in Lansing last Wednesday. Giuliani, who has tested positive for COVID-19 since he left Michigan, testified and answered questions for four hours while relying on a 1892 U.S. Supreme Court decision called McPherson v. Blacker, 146 U.S. 1.
This 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 five electoral votes and Harrison nine 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 and a GOP governor, 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 in Michigan this year have had to sidestep questions from the media and at voter forums inquiring whether they would vote in the lame duck session of the Legislature to award Michigan’s 16 presidential electors to Trump even if Biden receives more popular votes in Michigan. These GOP lawmakers (who retained their state House majority on Nov. 3) have seen Trump 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. Litigation launched by the Trump campaign and Republican lawyers have been underway for more than a month not only in Michigan but in state after state, in court after court.
So, will Republican legislators endorse Trump’s charges on mail-in voting and election corruption and name Trump electors?
Republican leaders in the Michigan Legislature have already indicated that won’t happen. Even if it does, and the same thing occurs in Pennsylvania, Wisconsin and/or Arizona, there’s the issue of whether U.S. House Speaker Nancy Pelosi, whose Democrats control the chamber now and for the next two years, would agree to seat some or all of the minority Republicans elected in November. Majority Democrats acting alone would be able to vote for Biden with no GOP input. That would provoke another constitutional crisis.
Meanwhile, time is running out. The 16 electors in Michigan will vote at the state capitol in Lansing 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 on January 6.