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Can Trump Really Lose the Election and Remain President?

Added 07-04-20 02:21:02pm EST - “Former Senator Timothy Wirth, writing with Tom Rogers, yesterday published what is perhaps the most plausible account of how President” - Reason.com

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Posted By TheNewsCommenter: From Reason.com: “Can Trump Really Lose the Election and Remain President?”. Below is an excerpt from the article.

Former Senator Timothy Wirth, writing with Tom Rogers, yesterday published what is perhaps the most plausible account of how President Trump could lose the election and remain President. The essence: Trump makes unfounded claims that China interfered in the election, the Justice Department investigates, the legislatures of four swing states Biden appeared to win decide to refuse to certify the Electoral College slate pending the investigation, the Supreme Court rules that the Electoral College must be held without those states, and Trump wins when the election is thrown to the House of Representatives voting by state.

Enhancing the argument's superficial appeal is that states don't have to use popular elections at all to choose the electors for President. Under Article II, § 1, cl. 2, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." As a legal matter, a state almost certainly could decide to cancel its popular election and name specific electors. Whether those electors could be bound to vote for a particular candidate is yet to be decided, but reasonably safe electors presumably could be found, even given the possibility of attempts to bribe or unduly influence electors. There does not, however, appear to be any movement in any state to eliminate popular voting for President. (I place aside the National Popular Vote Interstate Compact, which is based on the principle that the national popular vote rather than state popular votes should control.) The public does not want to abandon popular voting for a state's electoral votes in favor of the decisions of state legislators. I would be surprised if more than a very small portion of voters in a state would support this, even if there is a high probability that the state popular vote will be different from what legislators would decide.

Could a state retroactively cancel a popular vote and substitute the will of legislatures? Maybe, in theory. It isn't clear "as the Legislature therefore may direct" implies that the direction must be in advance of the election. But as in the federal government, state legislatures may "direct" outcomes only by passing legislation, which requires governors' signatures.  (Jason Harrow noted this in March in explaining why red state legislatures would be unlikely to use coronavirus as an excuse to cancel elections in advance.) Three of the four states in the Wirth-Rogers scenario have Democratic governors.

But could a state refuse to certify electors after the fact, with the goal of depriving Biden of a majority? Perhaps this seems more likely, in that it might occur as a result of executive or judicial action in a particular state. But with so many Democratic governors in the relevant states, executive action does not seem likely here. Meanwhile, the Pennsylvania Supreme Court is majority-Democratic and the Wisconsin Supreme Court consists of elected Justices who would thus seem unlikely to nullify the actions of voters in their states.

It's not even clear that a state could decide not to certify a slate of electors. "The Electors shall meet in their respective states, and vote by ballot for President and Vice-President," the Twelfth Amendment commands. In Bush v. Gore (2000), the Court emphasized the importance of a definitive resolution so that the Electoral College could meet on schedule. This provides a strong precedent for the Court to resolve a disputed election in some way.

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