Right now there is a lot of talk about fraud and stolen elections. There is a big payoff to a relatively small amount of fraud in a few cities (i.e. Detroit, Philadelphia, Milwaukee). There is very little payoff to risking jail over fraud in Omaha or Portland Maine. Yes, Maine and Nebraska have very few electoral votes, but there was a very real possibility that Omaha could have swung the entire election.
In Michigan, Wisconsin, and Pennsylvania the Republicans control the state legislatures (but not the governorships). It would be interesting to see the legislatures press the meaning of Article II Section I of the Constitution: “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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” Notice the requirement is not “as the State thereof may direct,” but the “Legislature.” These states should follow the ME and NE model where two electors are appointed to the winner of the state and the remainder are appointed to the winner of each congressional district.
For the math let’s assume Biden wins PA, WI, and MI (along with AZ, but not GA) that would give him 290 electors. If we allow a district level apportionment of electors (and assume electors chosen similar to congressmen) then Biden would lose 9 in PA, 5 in Wisconsin, and 7 in Michigan for a net loss of 21 electors and down to 269 electors. If these states also appointed 1 state wide elector to each candidate receiving at least 35% of the popular vote (2 electors to the highest recipient if less than 2 people receive 35% of the state wide popular vote) you could pull another 3 votes.
Also, remove the gubernatorial oversight of the election process. The process will be overseen by a board appointed by the legislature.
This does a couple things
- It reduces the incentive to cheat because cheating must occur over many districts
- It breaks the old Blue Wall. Never again will anyone capture all the votes from these three states
- It pleases the Republican constituents in the states (securing the state legislators seats)
- It capitalizes on the natural strength that Republicans currently enjoy in state legislatures
Any such push by the legislatures would be immediately challenged and pushed to the Supreme Court. The question is how Kavanaugh would vote on this. I suspect Roberts is going to go full blown Souter over the next few years. That still leaves 5 conservatives on the court. Would Kavanaugh agree that the Legislatures get to decide how electors are appointed?
I don’t think that Donald Trump will be president in February. However, the state legislatures can ensure that Kamala Harris doesn’t win in 2024.