WHAT IF MICHIGAN DEMOCRATS IN 2024 TOOK A PAGE FROM THE 2020 TRUMP ‘MAGA’ PLAYBOOK? THEY COULD HAVE THE MICHIGAN LEGISLATURE ITSELF APPOINT PRESIDENTIAL ELECTORS!
Is there any constitutional basis for such a radical and seemingly anti-democratic maneuver? Think about it.
In 2000, then-Chief Justice William Rehnquist wrote in a concurring opinion in Bush v Gore, joined by Justices Antonin Scalia and Clarence Thomas, that “the state Legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state Legislatures in several States for many years after the framing of our Constitution …The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.” (“Plenary” means that the Legislature’s power is complete and unlimited.)
Rehnquist’s concurrence suggests that the Florida Legislature could have resolved the 2000 presidential election recount by the Legislature itself appointing the Florida electors.
Article II, Section 1, Clause 2, of the U.S. Constitution provides:
“Each state shall appoint, in such manner as the Legislature by thereof may direct, a number of electors …”
Rehnquist based his concurring opinion on the U.S. Supreme Court’s precedent established in the 1892 decision in McPherson v Blacker upholding a Michigan law allocating presidential electors by the election outcome in each Congressional district rather than by a statewide winner-take-all allocation (Editor’s note: The Michigan Legislature in 1892 was controlled by the Democrats, and the governor was also a Democrat; after the high court’s ruling, Republicans regained ‘Trifecta’ control of Michigan government and changed the law back to winner-take-all, and it’s remained that way ever since). The Supreme Court held that the state Legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors themselves. If it has chosen another way of appointing electors, the Supreme Court said the Legislature, in the special context of Article II, can take back to itself the power to appoint electors.
The Trump campaign, immediately after the 2020 election night results became known, seized upon Rehnquist’s concurrence in Bush v Gore and began urging state Legislatures in Georgia, Pennsylvania, Michigan, Wisconsin, and Arizona, where Joe Biden won the popular vote, to simply overrule existing state election law and have the state Legislature substitute Trump electors to cast their votes in the Electoral College, replacing duly elected Democratic Party electors pledged to vote for Joe Biden. Republicans, in those five crucial states in 2020, at the time had majorities in both of their legislative chambers.
Trump partisans maintained that, using the plenary authority granted to state Legislatures, those Legislatures could appoint presidential electors without having to make any change to existing state election law that would ordinarily require the approval of the governor. Under most state constitutions, such unilateral action excluding the governor from a law-making role (sign or veto), would not pass legal muster.
In 2020 Republicans controlled both legislative chambers in each of those five target states. In those five states, Republicans held the governor’s office in only two: Georgia and Arizona. Under a modified application of the Rehnquist concurrence, those two Republican governors conceivably had the state constitutional power to call a special legislative session to pass a law permitting the legislature itself to appoint presidential electors. Doing so would have added 27 additional electoral votes to Donald Trump’s total, but not enough for Trump to reach the magic 270 electoral college vote threshold to be elected.
In 2024, Democrats now have governors in Pennsylvania, Michigan, Wisconsin, and Arizona. However, Michigan is currently the only state where Democrats control both chambers in the state Legislature along with the governor’s office.
Most political observers predict a close presidential election, not necessarily in the nationwide popular vote, but again in the electoral college. Biden defeated Trump by more than seven million votes nationwide in 2020, Hillary Clinton defeated Trump by three million votes nationwide in 2016.
Biden’s 2020 electoral college victory came down to approximately 44,000 votes spread across the three states of Arizona, Georgia, and Wisconsin. Flipping the outcome in those three states would have resulted in a 269-269 tie in the Electoral College. If no candidate receives 270 electoral votes, the U.S. House of Representatives decides who is President. Voting in the House is done with each state and the District of Columbia having one vote. The majority vote in each state delegation is what counts — not individual Representatives. Under that scenario, Donald Trump would have been elected President by the House in 2020.
The 2020 Trump MAGA playbook was not interested in flipping votes the old-fashioned way of using recounts and other traditional election and voter challenges. The Trump MAGA playbook said the state Legislature could simply announce a finding that the election was somehow fraudulent and award the state’s electoral votes using its plenary power to the Donald Trump electors.
An electoral college face-off between Biden and Trump in 2024 may come down to Michigan’s 15 electoral votes.
Donald Trump is currently ahead in Michigan in published polling. Biden’s response to the Israeli-Gaza conflict has alienated an important Arab American voting bloc in southeastern Michigan. Emerging third party presidential candidates may siphon off votes from both major party nominees.
Both parties seem poised to nominate aged and flawed presidential candidates. Although the abortion issue on paper may give Democrats a voter turnout advantage, turnout is expected to dip significantly in 2024 from what it was in 2020 due to lower voter enthusiasm across the board.
What if Michigan Democrats decided to play constitutional hardball? Democrats in Michigan today have the power theoretically to enact a new electoral college vote allocation law that authorizes the Legislature itself, not the certified results of the statewide vote cast for presidential candidates, to award the state’s 15 electoral votes.
McPherson v Blacker, the governing case law, says the Michigan Legislature can take back from voters the statewide authority to appoint electors. Constitutional scholar Bob LaBrant of rural Lansing asks these questions: “Is this something the Legislature can just do unilaterally, using its plenary authority? Or does McPherson v Blacker require the Legislature to change Michigan election law to take back that power?
Enactment of that legislation would be messy. Editorial opposition could very well be expressed across the state and nation. It could even lead to gubernatorial and state Senate recalls in 2025.
As with the recent presidential primary law, such a bill might not get immediate effect in the state Senate (unless Democrats change the rules). Moreover, the Legislature would need to be prepared to include an appropriation in the bill, making it, under current state Supreme Court precedent, referendum-proof. The Legislature would once again need to adjourn early, on or about August 1 of this year, allowing more than 90 days to pass after the sine die adjournment, in order to have the new electoral vote allocation law be in effect before Election Day this coming November 5.
An electoral college victory or defeat for either candidate may come down to Michigan. Trump demonstrated the lengths he and the MAGA movement were prepared to go in 2020 and may again in 2024. For Democrats, who see Trump as an existential threat to democracy, is this the time to fight fire with fire and play constitutional hardball in 2024, or is this a political bridge too far, where the means that need to be employed do not justify the desired end?
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Royal says
Huzza Bill! Leave it to TBR to come up with a political Rube Goldberg to give the election to Caesar/Dems. Trump swore he would give the power back to we-the-people. Appears his process may become the totalitarian’s tool to use. Thanks for letting us, and them, know . . . . Who needs turnout and third parties when votes can simply be nullified
Leanne says
In 2000 the Clinton Administration shot themselves in the foot by aggressively pursuing the deportation of Elian Gonzales back to Cuba – which infuriated the Cuban-American community in that state. Florida Governor Jeb Bush refused to have the Florida State Police take any action to cooperate in this deportation. The Florida Republican Party chairman, a Cuban-American exile, ardently organized the Cuban-American community to support George W. Bush over V.P. Al Gore in the 2000 presidential election.
In the end, Bush defeated Gore in Florida by less than 800 votes. It is a reasonable assumption that the Elian Gonzales deportation cost Al Gore the presidency. Likewise in the instant year, President Biden has imprudently embraced Bibi Netanyahu and his deadly rampage in Gaza while proclaiming “I am a Zionist.”
In 1968, LBJ and the Democratic Party were likewise sunk by their policy in Vietnam while deaths and atrocities following the start of Tet Offensive were broadcast nightly on network news programs that refuted their official assertions on how well the war was going. Same is going on now in Gaza.
Trump is now leading in national polling over Biden despite not even declaring any coherent policy on Gaza, but (convincingly) asserting Netanyahu “should be impeached” over October 7th.
The only thing now that may prevent a new Trump presidency is a felony conviction BEFORE the November Election Day.
John C Stewart says
Well-researched statement from Bill Ballenger
Now, for the “Breaking News” story of Sunday, February 18, 2024,
ABC-WXYZ- Ch 7 in SE Michigan this morning, Chuck Stokes called Bill Ballenger “THE CROWN PRINCE OF MICHIGAN POLITICAL PUNDITS”
Then, amazingly enough, our guy Ballenger gave an INTELLECTUALLY HONEST AND ACCURATE SUMMARY of our current political situation. HURRAH. You are a role model. Ballenger is the “David Gergen” of Michigan politics.
John C Stewart says
MICHIGAN on National News again, no less than “6O Minutes “ CBS regarding “FAKE ELECTORS”
Leanne says
What is amusing is that the Michigan “fake electors” case is currently bogged down in the District Court in Lansing as testimony is being received by the Court at the preliminary examination level. No one has been bound over to the Circuit Court for trial as of yet despite over six months elapsing since the charges were filed by Michigan Attorney general Dana Nessel.
Two of the accused “fake electors” appeared recently at a GOP function with Pete Hoekstra. Nobody in the GOP sphere of influence has given the criminal charges any credence. No one expects these charges to be substantiated.
Yet Dana Nessel did nothing on the Muskegon City Clerk’s report of credible evidence of hundreds of fake voter applications.
Manuela Garza says
The “fake electors” – as well as the acquitted criminal defendants in the Whitmer kidnapping case – are appearing at GOP fundraisers and enjoying great popularity in the right-wing political community.
Yesterday at a GOP function in Redford Township, acquitted defendants Messrs. Mull and Molitor appeared and were among a number of activists receiving awards while being hailed as victims of FBI and Michigan Attorney General Dana Nessel’s persecution.
Matt Crehan says
Sure is an interesting scenario, Bill. But I anticipate more shenanigans on the part of DEMentia Joe’s gang (that presumes he makes it to the general election; look for Gruesome Newsom to replace him at the convention). Plan on this election being stolen like many have been previously; just think Chicago style politics on a nationwide scale.
Of course, since the chicanery will be more apparent than it was four years ago, the Republican members of the Boards of Canvassers can merely abstain from voting pending a full forensic audit. So that should quash any electoral manipulation of the vote. But not before the Court chimes in.
David L Richards says
I don’t think Bill wants the comment section to be a typical Trump-Anti-Trump debate, but I can’t resist asking this question: When there was such an obvious attempt to overthrow the 2020 election outcome by Trump and his many Republican supporters (“find me 11,000 votes” in Georgia, January 6 riots, fake electors), and the claims of the 2020 election being “stolen” from Trump not only being based on zero evidence, but in many cases have been outright disproven (50% registered Detroit voters voted in 2020, not Trump’s 139% claim, the Georgia voting machines didn’t commit “massive fraud” per hand recounts), why fear that it is the Democrats who might try to steal 2024?
Leanne says
Because of all the dubious conduct by Democrats:
(A) the Fulton County D.A. Fani Willis bringing a questionable “racketeering” case against Trump and being placed under embarrassing ethical scrutiny herself:
(B) Michigan Attorney General Dana Nessel refusing to advance a cogent explanation about why she did not continue to investigate serious voter application irregularities identified by the Muskegon City Clerk;
(C) Dana Nessel filing charges against alleged fake electors three years after the fact after the Biden administration Department of Justice failed to obtain an indictment after concluding their investigation – and the Democratic Ingham County Prosecutor declining to bring charges while labelling the conduct a “political stunt” without any criminal intent
(D) Fulton County “Special Prosecutor” Nathan Wade billing Fulton County taxpayers thousands of dollars for “meetings” with White House counsel.
There were – and have habitually been – serious voting irregularities identified in jurisdictions such as Detroit and Hamtramck that have been substantiated and previously proven in court and before the Wayne County Board of Canvassers.
It was fellow Democrats who had placed the City of Detroit absentee voting program in receivership due to obvious violations when the late Jackie Currie was City Clerk. It was Democrats who recently successfully claimed gerrymandering by the Redistricting Commission in federal court.
The Democrat-dominated City of Hamtramck is one of the few jurisdictions in the U.S. today whose federal elections are supervised by U.S. Justice Department monitors due to a history of minority voter harassment.
Manuela Garza says
The Fani Willis-Nathan Wade sideshow is amazing – it has been revealed that she has been under intense private investigation scrutiny by the Trump legal team. Extensive cell phone analysis has revealed information damaging to her court testimony.
Tim Sullivan says
Nice article, Bill. An interesting read as always. For those in the various “fake electors” cases, Chief Justice Rehnquist’s concurrence may be something that their lawyers might want to try, and if tried here, give us a quick look at how the Michigan courts will react to such a tactic. This tactic may not apply to the raging dumpster fire that is Fulton County, Georgia, though.
As for the legislature’s actions on choosing electors, I think the fact that since there is already legislation on the matter, McPherson v Blacker, they would have to pass new legislation. The appropriation attached to it would be a nice touch (political karma anyone). If the Democrats felt that this was the only way to stop Trump, they would pull the trigger – and effectively say your vote be damned (kudos to Royal’s earlier comment). The long-term consequences to the politics of Michigan and nation might be the only thing that stops them. But if they do this, I think would depend on polling data through the early summer. If it is well above the margin of error for Trump, it is possible. Just look at the steps they are taking to keep third party candidates off the ballot and moving Heaven and Earth to limit any votes that Dean Phillips can get in a Democratic primary, including not having a primary in Florida. Given that, I’m not sure that any editorial hue and cry from the media or the public; potential recalls (made much harder to do by the GOP during the Snyder regime political karma once again); or even negative outcomes in the 2024 elections in Michigan – would matter much to them if they went that route. If it did matter to them, they would not do it in the first place. Once more, we’ll be waiting for film at 11.
Mark Koroi says
I was surprised that neither Ms. Willliamson nor Mr. Phillips was to gain real traction against Joe Biden in for the presidential nomination in polling among Democrats.
For all the infighting among Democrats over Gaza, they appear solidly behind Biden’s nomination.
Jack Lessenberry says
Fascinating and clever scenario. But nobody, certainly not the Democrats, will even think of doing that in Michigan. Yes, it “could” theoretically happen. So could another Democratic National Convention that goes 103 ballots, like the one they had in 1924. But neither will.
There also seems to be a lack of recognition of the fact that in politics, six months can be an eternity. Does anyone really believe that Arab-Americans will vote for Trump, who essentially wants to deport them all? A
Leanne says
“Does anyone really believe that Arab-Americans will vote for Trump, who essentially wants to deport them all?”
ANSWER:
(A) Chaldean-Americans voted overwhelmingly for Trump in 2020 in Michigan – and Alina Habba, his trial attorney in several cases, is Chaldean;
(B) Trump administration official Michael Flynn was greeted at a reception hall of Yemeni-Americans in Hamtramck several months ago and was welcomed by the Mayor Amer Ghalib.
(C) three current Michigan GOP vice-chairs are Arab Muslims – and state outreach vice-chair Rola Makki, a nurse from Dearborn is a solid defender of Trump.
Matt Crehan says
(D) Hon. Hala Y. Jarbou, Chief Judge of the US District Court, Western District of Michigan, was appointed by DJT.
Walt Sorg says
Really? Maybe your next column could explain how the Tigers might win the World Series.
Matt Crehan says
…..always one in the crowd!
Alan Fox says
Bill, you very carefully stated only that this could happen, not that anyone is actually thinking of doing it or planning. Good thing, because there is not a shred of evidence to support this exercise.
Manuela Garza says
I personally hope that Democratic Party primary voters are intelligent enough to oppose Joe Biden at the polls. Congressman Phillips is certainly a better choice than Biden.
It will be interesting to see the polling results from Arab-American locales in Metro Detroit such as Dearborn and Hamtramck to see how Biden will fare in the Democratic Party presidential primary election.
Many will follow the recommendation and vote “Uncommitted”.
Democrats in Michigan will be asked in Michigan this August to cast their primary ballot for AIPAC-funded presumptive nominee Elissa Slotkin. The GOP feels that they can defeat her given her stances on Gaza and the ensuing backlash from Arab-Americans over Democratic Party support of Israel.
At the time GOP U.S. Senate candidate James Craig announced his withdrawal from the race, he was ahead of Slotkin by 2.3%. Slotkin averaged a 6% lead over GOP candidates in polling prior to October 7th. Her criticism of Rashida Tlaib backfired.
For the first time in U.S. history, Arab-Americans are uniting against Democrats who have been perceived as being bought by pro-Israel interests.