I believe that there is federal law (but not constitutional law) preventing states from changing the rules after the election takes place. I’m not sure if this has been constitutionally tested, and it also might get murkier if the states make decision while the mail-in votes are being counted - after November 3rd. Contrary to popular belief the federal govt does have a lot of power to regulate how states run their elections, but I’m not sure if they have regulatory authority in this specific instance - I think they would need to hook in some slightly tangential clause of the constitution about voting.
Also courts in the past have said that there is a reasonable expectation that the rules established before an election should be honored, and that it would undermine the spirit of the law for a state to change things in post.
It’s a legally murky issue and if the SCOTUS wants to come to the conclusion that a legislative coup would be OK they probably can.
Here’s an interesting and detailed analysis of the issue, from last March. Quick summary is that the writer thinks that since the state legislatures have passed statutes for appointment of the electors by means of elections, the legislatures can only change that by passing a new state law; which would be subject to governor veto powers in states that have D governors. He also points out that the federal “safe haven” statute only applies to electors selected by state laws passed before the election, so that laws changing the appointment after the election won’t have the same protection under federal law.
If they did, wouldn’t the 14th Amendment strip them of half of their representatives? (Only half because the amendment is specific about males being denied.)
Or do they just not care about the House anymore, and just try to control everything through the Senate?
The writer, like most of us, assumes that the Supreme Court won’t assert itself to put its hands on the case and take the Constitution in its own hands. Nobody knows how a hypothetical will turn out, but what I do know is that we already have one fairly recent election in which the Court overrode state courts to stop a state-mandated counting process, which thereby handed a partisan judicial victory to the republican candidate, and thus, the White House with it. We also know that it’s highly likely that at minimum 5 justices on the bench have patterns of fairly predictable partisan judicial rulings, some of which appear to run against the grain of prevailing doctrine. Yesterday’s Wisconsin decision, absent Justice Barret, makes it quite clear that anything is possible. Don’t hang your hat on the power of the law and the rule of law; that power has been weakened considerably, and perhaps irretrievably for a good generation or two.
Yup. Irrespective of how much a particular prediction sounds like a “conspiracy theory” to any particular observer, at the very least one has to admit that it is a series of weird coincidences that all these people with specific and perverse views on what is and what isn’t allowed in an election, and what ballots should and shouldn’t be counted, and what the USPS should and shouldn’t do, and what states are allowed to do what with their polling places, and so on and so forth, have all strangely coalesced right before an election that Donald Trump, a guy who has said repeatedly that he wouldn’t accept the results of an election he didn’t win, wasn’t gonna be able to win.
I think one reason we assume that Republicans wouldn’t ‘go there’ and willfully use the courts to derail a free and fair election is that we assume that republicans would care about the backlash. But I really don’t think they do. I’m not even sure they expect one. To them, the Constitution and the legal and political systems that emanate from it are like tricky contracts that can be read and interpreted in different ways. My impression is that they already embraced the attitude that if they can get enough legislatures and court justices to collectively scheme a way to derail the election by ballot box, they’ll gladly let it play out in the courts, where they expect to win. And then they’ll just point to the Constitution and say “Sorry, but it’s in the contract.”
I think people are underestimating the degree to which the courts have become ideologically manipulated and what impact this could have going forward.
Sorry if this has already been asked and/or answered but how much power does Congress have to require states to meet certain standards in their election processes? For example, could it mandate nationwide early voting periods of a minimum of two weeks?
Red state legislatures, with the help of an extreme SC, appear to be the biggest threat to our threatened democracy.
Just as a point of clarification:
The “males” part of the 14th was superseded by the 19th Amendment and the “21 years of age” part was superseded by the 26th Amendment.
A textualist should agree, as Amendments are part of the Constitution (they do not stand separate), so subsequent Amendments affect previous Amendments. I am not a Constitutional lawyer, so I couldn’t tell you where this is established.
A plain reading of the 14th would suggest that the will of the voters could be overridden at the cost of Congressional representation, but this has never been put to the test.
wouldn’t a similar “plain reading” of the 14th also suggest that assigning electoral college representatives using a winner-take-all method should also reduce congressional representation accordingly? If the vote is 51-49 and you assign all the EC members to one side, you’re also denying the vote of 49% of the population.
The losing side was still able to vote and have their votes counted, so their “right to vote at any election for the choice of electors for President and Vice President” was not infringed. They are not guaranteed the electors they voted for, just the “right to vote”. How the electors are assigned is the purview of the state, but if people don’t get the “right to vote” for their electors, then no Congressional representation.
Again, not a Constitutional lawyer. Although I feel that this Administration has made Constitutional scholars of us all, by necessity.
I do hope that that is the case. I only note that because for the 14th, there is a specific penalty associated with disenfranchising male voters over 21, and the other amendments just say that they need to be allowed to vote, and that congress may pass legislation to that effect.
The 14th is the only amendment that actually puts a penalty in for non-compliance. The rest just state that you can’t do it.
But, anyway, would that not be the consequence of the states disregarding the will of their voters, losing somewhere between half and all of their representatives?
I sure hope that’s the case. Hard to say what kind of exceptions this Supreme Court might carve out.
I would also be amused is newly-elected Speaker Pelosi refused to seat the delegation from such a state because of the 14th. (Though I’m not sure just how that would work).
Exactly my point. Nobody is deprived of their right to vote, the state legislature can still do whatever it wants with the result when it comes to translating those votes to EC members. Whether it effectively goes against the wishes of 49% (as it does routinely with winner-take-all) or 51% of the population (hypothetical 2020 scenario), the legislature still has control.
To your knowledge, regarding the “manufacture” of votes, what is the largest number that has ever been manufactured in 3 days? When and where did this happen?
What is the largest number you think could be manufactured in just 3 days, and by what mechanism?
“If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.”
A Constitutional thicket that I can’t untangle, to be sure.
There is also the Electoral Count Act which stipulates that a state cannot change their election laws after the election, or else they would lose their “Safe Harbor” protections, leaving it to Congress to decide which slate of electors - the voters’ or the legislature’s - would be honored.
Nice summary here:
Is this the way it would actually work should it meet a court challenge? I hope we don’t have to find out.
Then the Electoral College would just become a watered-down version of the popular vote, and redundant. Instead of Biden carrying California’s 52 EVs, he would get something like 32 EVs and Trump would get 20.