Electoral College Expert: Don't Expect State Lawmakers To Overrule Voters

Joe Biden is the president-elect, and Donald Trump’s campaign has presented no serious evidence that would lead a judge to throw out enough votes to reverse the outcome of the election.

You can take Ohio State University professor Edward P. Foley’s word for it. He’s the Ebersold Chair in Constitutional Law at OSU and directs the university’s election law project. Foley outlined the futility of the president’s efforts to hold onto power past his presidency’s Jan. 20 expiration date in the Washington Post this week.

Still, people have found themselves asking, “What if?”

One listener asked ideastream whether state legislatures could manipulate the Electoral College to overturn the will of the voters: “Is it possible that the Republican legislatures of these battleground states could simply choose electors that are pro-Trump?”

Foley labeled the notion “morally repugnant.” Conservative editor Rich Lowry, writing for Politico, called such a gambit a “poisonous idea” that would provoke a “thermonuclear” political reaction. Pennsylvania state Sen. Jake Corman, leader of the Keystone State’s Republican senate majority, has said his state’s electors will go to the winner of the popular vote.

And Robert Alexander, a professor at Ohio Northern University who literally wrote the book on the Electoral College, doesn’t see it happening.

State legislatures do have a say in how presidential electors are picked — but they’ve already made their choice, Alexander told ideastream.

“In all states across the country, they all determine that the popular vote of their state, or at least their congressional district in the case of Maine and Nebraska, would be how their electors would be selected,” he said.

Pennsylvania election code, for instance, gives the commonwealth’s voters the job of picking presidential electors. And legislatures can’t just change a state’s election rules after Election Day, Alexander said. Plus, legislatures aren’t the only players here.

“First of all, all electoral voters are supposed to be certified by the state election official, which is generally the governor,” Alexander said. “So the governor usually signs of on all certificates of ascertainment, is what it’s referred to.”

And the governors of Wisconsin, Michigan and Pennsylvania are all Democrats.

Members of the Electoral College meet in their respective state capitols Dec. 14 to cast their votes for president. Congress counts those votes Jan. 6.

Congress can consider objections to the electoral count, which must be raised by both a member of the House and the Senate. It takes majorities in both chambers of Congress to uphold any such objection.

In 2005, Rep. Stephanie Tubbs Jones (D-Ohio) and Sen. Barbara Boxer (D-Calif.) objected to awarding Ohio’s 20 electoral votes to George W. Bush. But the objection failed in both chambers.

Democrats’ current control of the House makes it unlikely such an objection to Biden’s votes would succeed, Alexander said.

The courts probably wouldn’t go for a state legislative reversal either, he said.

Consider this summer’s U.S. Supreme Court ruling on “faithless electors,” he said. The high court unanimously upheld state laws that penalize electors who switch their presidential votes.

“Early in our history, States decided to tie electors to the presidential choices of others, whether legislatures or citizens,” Justice Elena Kagan wrote for the majority. “Except that legislatures no longer play a role, that practice has continued for more than 200 years.”

A state that penalizes faithless electors, Kagan wrote, “instructs its electors that they have no ground for reversing the vote of millions of its citizens.”

In Alexander’s view, that same principle should hold true in the hypothetical state legislature scenario.

“If you had a state legislature just put their own slate of electors in, that would be undoing the will of the people,” he said, “which this court literally just said months ago would go against the fabric, or the expectation, of the Electoral College today.”