Several times, this space has been dedicated to debunking quasi-Constitutional hysteria promulgated by right-wing Republicans in the name of “founding intent.” The dirty little secret among these scoundrels is that their extremism fails on their own cynical terms: Most often, what is taken by Republicans as gospel is merely fable.
Conservatism’s latest Constitutional betrayal has come in answer to Donald Trump’s popular and electoral vote loss two weeks ago today. Michigan and Pennsylvania are not particularly close; Wisconsin, Arizona, and Georgia were closer but, then again, not particularly close. Everyone knows Donald Trump lost these states decisively, but because Trump is a fascist and the Republican Party his Vichy enabler, Republicans continue to assert that State Legislatures can void their states’ elections and simply name their own elector slates.
It is not clear why they believe this. The Constitution says no such thing. Article II does provide that:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress …
That clause does not say that state legislatures can conjure electors out of thin air. It says that state legislatures may choose any manner of appointing electors. And all 50 state legislatures have long awarded their elector slates to the winner of each state’s popular vote. The only exceptions are Maine and Nebraska, which award two electors to the statewide winner and one electoral vote to the winner of each congressional district. These rules are set well ahead of time.
So, you may ask, if the state legislatures have the power to choose the manner of appointing electors, why they can’t just empower themselves now. Well, as usual, Republicans stop reading at the parts they like. Further on in Article II, the Constitution explains:
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Congress determines the time of “chusing” the electors. That time in 2020 was November 3. Electors can’t be chosen on any other day. That’s it. Any state legislature that attempted to “chuse” electors after November 3 would be engaged in an unsubtle form of constitutional and legal sedition. Literally, an attempted coup d’etat. Friends of democracy and self-government can hardly understate the stakes—not in the result, which is assured, but in the inevitable fallout of an entire political party nursing Trump’s authoritarian fantasies.
But, you say with feeling, what if the state mechanisms for choosing electors break down and states don’t send electors to vote at all? Then Joe Biden wouldn’t get 270 electoral votes and the election would be “thrown” into the House, where Republican chicanery would be afoot! Nope. Again, read the sainted document conservatives pretend to revere:
The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed…
Just as a hypothetical, consider if Michigan, Pennsylvania, Wisconsin, Arizona, and Georgia simply didn’t appoint electors at all. Congress wouldn’t count phantom electoral votes; constitutionally, it would only determine which candidate had a majority of votes. Biden would win in this scenario 233-232–look it up yourself.
The point is not necessarily to debunk right-wing fever-swamp rhetoric. Even the most cursory analysis demonstrates their position unfit for peaceful society, much less worthy of debate. The point is to demonstrate that as Republicans undermine the very foundation of free government—the popular vote—they do so for a chimera, a mirage, a delusion, a fantasy, a totalitarian hallucination.
Dear reader, I wish I could say that your quarrel is with a few dozen dead white merchants from the 18th Century, but they have been framed. No, the threat comes from your own friends and neighbors in real time—millions of whom are actively engaged in either (1) a patently illegal exercise in subverting a duly-elected President of the United States from taking office or (2) undermining the American electoral process so as to make such subversions easier in the future.
Either way, we are no longer in the realm of polite political debate. Instead, we are debating the very foundations of American government—Vichy Republicans like Mike Lee won’t even grant us “democracy.” In such ways do the supposed “constitutionalists” destroy the Constitution to “save” it. Act accordingly—and carefully—when considering whether such people are acting in good faith. Leave yourself with plenty of room to conclude they are not.