State legislatures are still a threat to appointing electors contrary to the will of their voters.
The 2020 election revealed longstanding fractures in the foundation of our system for conducting presidential elections. Before these lead to an earthquake in a subsequent presidential election, we need to shore up that foundation.
The single most dangerous threat the election exposed was the prospect of legislatures directly appointing a state’s electors and overriding the vote of the people in that state. No state legislature has attempted to do this since at least the Civil War. But in the run-up to the 2020 election, this seemed the most likely means that might circumvent the voters and subvert the election. This concern has been proven warranted: After the Trump campaign’s postelection lawsuits failed around the country, its strategy was precisely to get state legislatures in key swing states to appoint the electors themselves.
Indeed, President Trump continues to pursue that strategy even now — he reportedly twice called the Republican speaker of the Pennsylvania House of Representatives in recent days — despite these states having legally certified Joe Biden as the winner of their state’s popular vote.
There is no legal basis for what the president is urging, but it calls attention to a previously obscure provision in federal election law. This provision, known as the “failed election” provision, lies around like a loaded weapon. It is the only place in federal law that identifies circumstances in which, even after a popular vote for president has been taken, a state legislature has the power to step in and appoint electors.
The “failed election” provision traces back to the Presidential Election Day Act, first enacted in 1845. That act, after specifying the date for the presidential election, goes on to provide: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”
The act, however, does not define what it means for an election to have “failed.” Nor does past practice give any more determinate meaning to this term; this provision has never been invoked, at least since the closely related federal Electoral Count Act was passed in 1887. But the little-known history of the act reveals that one major purpose for it is now anachronistic, and the act needs to be modernized to reflect the limited purposes for which it might remain relevant today.
When Congress was creating the Presidential Election Day Act, the “failed election” provision was added at the insistence of representatives from New Hampshire and Virginia. At the time, New Hampshire required that a candidate had to receive a majority of all votes cast to be elected. A candidate who finished first but with only a plurality of the vote was not elected. The backup process in New Hampshire, as in other states that similarly required a “majority of votes” to win, was either that the legislature would appoint the office holder or that a second election would be held. Thus, these states would not be able to choose their presidential electors on Election Day, whenever no candidate received a “majority” of the votes — which would happen with third-party candidates on the ballot. When the bill was next debated, the House responded by adding the “failed election” provision now found in current law.
The history of why federal election law includes this “failed election” provision is part of the story of how democracy was understood early in American history. Many state constitutions initially included these “majority” vote provisions. This reflected the link between democracy and “majority rule” as that was understood early on. But as experience with democratic elections developed, states soon discovered that many elections involved a candidate winning a plurality, but not a majority, of the votes. That would trigger a backup provision in state laws — a provision that provided either that the election would be held repeatedly until someone received a majority of votes, or that the legislature was empowered to bypass an election and appoint the officeholder (the current Georgia Senate runoff elections are a remnant of this history).
That first alternative sometimes led to farcical situations. At least one congressional seat remained vacant for an entire two-year term because, despite repeated elections, no candidate ever received a majority of the vote. Similarly, the New Hampshire Legislature appointed eight governors in the 50 years leading up to the state’s switch to a plurality provision in 1912. As these experiences mounted and democratic understandings matured, nearly all states replaced their “majority vote” requirements with “plurality vote” ones. The adoption of these “plurality vote” rules eliminated a major reason for the “failed election” provision. Two different, contemporary purposes might still warrant retaining a version of this provision, but if so, the provision needs to be rewritten to address these two specific situations in safer, narrowly defined terms.
First, a natural disaster or similar event might make it temporarily impossible for a state to vote on general Election Day. But in many contexts, states will be able to recover from these disasters quickly enough to hold the election within a week. State laws, enacted in advance, should provide for these foreseeable emergencies. Federal law, in turn, should permit a state to choose its electors after Election Day in this rare circumstance when it is impossible for a state to hold elections on Election Day.
Second, it is possible a state might not be able to certify its vote before the date the Electoral College must vote, which would risk depriving the state of its vote. That could happen if unresolved litigation raises legitimate challenges and the judicial process cannot be finished in time to certify a winner before the electors must vote. Leaving open a small window to account for this rare possibility might be necessary, but the scope of this power must be extremely limited. Indeed, one strategy of the Trump campaign was to exploit this possibility by dragging out court cases long enough for state legislatures to “have” to step in.
One way to reduce this risk is to push back the Electoral College vote until late December or even early January. There are trade-offs in doing that, but we need to recognize that, since 2000, litigation over a close election has become inevitable. This year’s cases were insubstantial, which enabled prompt resolution, but more credible cases will take longer to resolve. Moving back the date of the Electoral College vote permits more time to complete any legitimate court proceedings before a legislature could claim the state’s election had “failed.” On top of that, the law should make clear that the legislatures lose any power once a state has certified its vote.
The American people, not state legislatures, should choose the president. The “failed election” provision, which lies around as one of the greatest threats to that principle, was created in significant part for reasons that no longer apply. To preserve the integrity of presidential elections, Congress needs to modernize that provision and define clearly the extremely limited, highly unlikely circumstances in which it might ever legitimately come into play.
Richard H. Pildes is a professor at New York University’s School of Law and an author of the casebook “The Law of Democracy: Legal Structure of the Political Process.”
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