so I know Republicans in state governments are taking power away from the secretary of state to give it to the (republican) legislature to oversee elections.
can the gop legislature just hand elections to Republicans based on non existent fraud? like if in Georgia if the Democrat wins an election by 23000 votes can the legislature just say ‘23001 votes were fraudulent, all of them for the Democrat’ with no evidence and appoint the republican a winner?
i mean, there’s more checks and balances than that right? I would really hope there are.
I don’t know. All I can really say is that’s what the republicans really hope to be able to do. Driving current elections workers to quit because of the threats of violence and death is fully within the scope of their plans.
“Can” they? Certainly any attempt by a Republican legislature to invalidate tens of thousands of votes on the basis of no evidence would be challenged in federal court as an equal protection violation. The counter argument would be that the Constitution gives state legislatures the authority to determine how its presidential electors are to be determined. So it would come down to how effective Trump was at seeding the federal judiciary in his four years.
The current Supreme Court would rule this a “political matter”. In other words, if you don’t like the legislature throwing your votes out, then vote out the legislature.
The possible outcomes are asymmetric. If the Democrat wins, however honestly or not, the Republican masses will riot and the blood will flow. If the Republican wins, however honestly or not, the Democratis masses will moan a little bit and then mostly just roll over.
This is a completely different issue. Under Federal Law, the rules in effect at the time of Federal elections have to be followed. So yes, if the law was enacted before the election, a legislature could rewrite their state law to have them select the electors, or the governor could select them, or a number of random registered voters equal to the number of EVs could be selected.
If, as the OP posits, all of the election rules were followed and the legislature changed the results in defiance of the established law, I suspect that would be thrown out almost immediately when the winner/now-loser took it to court. The real question is would the candidate have Federal standing if state election rules are violated this way.
The other question is what happens when all of the Judges and all of the Justices ignore the law in favor of politics. You have all read stories of corrupt judges at the city, state and even Federal level; so what happens in those cases?
No, because we’re predicting what may happen in the next election or several elections. Where Republicans control the legislatures, they appear to be all gung-ho for passing new laws to make sure the Georgia senate races don’t happen like that again.
The Constitution provides that, “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors . . .”. It also provides that, “The Congress may determine the time of choosing the electors . . .” which Congress has done by establishing a national Election Day through federal statutes. That’s traditionally been interpreted the way you say – states have to adhere to the process they have in place on Election Day.
But it’s notable that federal law includes a “failed election” exception, which states that, “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.” It’s never been tested what it means for a state to have “failed to make a choice”.
Just to be clear, I wholeheartedly agree with your interpretation and the “failed election” clause is clearly meant to account for something like a natural disaster. But in this Brave New World of conservative jurisprudence, I wouldn’t take anything for granted. In concurrences in Democratic National Committee v Wisconsin State Legislature, Gorsuch and Kavanaugh expressed some expansive views of state legislatures’ authority regarding elections (although awarding of EPs was not at issue). Barrett was not yet on the Court at that point, so we can’t know what she may have thought.
This is the concern… Though I don’t think this is happening, yet. The tactic they are currently attempting is to twist things around before the votes are counted.
The hope from the right is that they can pass laws that allow them to disenfranchise the “wrong” sort of people, so that they get the votes they need. They aren’t yet making it so that the whole process of voting is moot. But theoretically it’s possible under the law, and I suspect that’d be the next step if their current efforts don’t get them the results they want.
For at least a half century before the 1960s, SCOTUS declined to get involved in voting rights. I know for a fact that my home state of PA had not redistricted since 1900 despite a clear mandate in its constitution that it do so after every election. The constitution also limited the number of state legislative districts in any one county, although this mattered only to Philly and Alleghany (Pittsburgh). And the court called this a political question, none of their business. If Philly and Pittsburgh didn’t like it, let them elect representatives to change it. Huh?
Now they’re saying, you don’t like the gerrymander? Elect enough representatives to change it. Utterly illogical.