As Nov. 3 draws near, the now-coronavirus-stricken President Donald Trump has cast doubt on both the sanctity of America’s voting process and his willingness to accept the election results if he loses.
Some legal experts have recently raised scenarios that could hand Trump the presidency even if he is defeated at the ballot box, although others believe the odds are slim.
They include the possibility that, in the case of a disputed election, GOP-controlled state legislatures could select pro-Trump electors and order them to cast their ballots for the president — regardless of the results of their statewide election results.
This would technically be legal under the U.S. Constitution. Article Two, Section one reads that electors in each state shall be appointed “in such Manner as the Legislature thereof may direct.”
Some Democratic strategists are concerned that with such broad discretion granted to state legislatures in choosing electors, state GOP leaders could be planning to take this to its logical conclusion if Trump loses in their state. Lawmakers could essentially argue that they are merely speaking for the will of their voters in the midst of election uncertainty and chaos.
This isn’t the first time in recent year that the possibility has been raised of Michigan Republicans changing rules for electors. After Democrats won Michigan for the sixth-straight election in 2012, some Republicans wanted to go to a proportional system instead of winner-take-all to boost GOP nominees.
Michigan has 16 electoral votes — 14 for each member of Congress, plus two senators. It’s one of seven swing states — Wisconsin, Ohio, North Carolina, Pennsylvania, Florida and Iowa are the others — have Republican-controlled state legislatures.
In Michigan, state House Speaker Lee Chatfield (R-Levering) and state Senate Majority Leader Mike Shirkey (R-Clarklake) are enthusiastic Trump supporters and have stumped for him.
“When it comes to presidential elections, the voters are at the mercy of the state legislatures,” reads an article from the National Constitution Center.
But is this also the case in Michigan?
Steve Liedel, former chief counsel to Gov. Jennifer Granholm, tells the Advance that such a scenario could potentially play out in other states. But it would have criminal consequences under the Michigan Election Law.
“The [elector selection] process is done under state law under chapter four of the Michigan Election Law, and there’s effectively no role for the Legislature in the process,” Liedel said Friday. “It’s a process that’s driven by the secretary of state [Democrat Jocelyn Benson] and the governor [Democrat Gretchen Whitmer]. It’s not really a legislative function.”
Because of this, Liedel says it would be “rather unlikely” for Michigan’s GOP leadership to try and skirt around the normal process — but “in 2020, anything is a possibility,” he added.
One way for the scenario to come to fruition anyway: Michigan leadership could pass legislation to change the election mechanisms currently in place, allowing the Legislature to have more power over Michigan’s role in the Electoral College.
But such a law would have to be either signed by Whitmer, who’s a strong backer of Democratic nominee Joe Biden, or enacted over her objections — both unlikely scenarios.
The other option: “Folks would have to essentially decide that the rule of law no longer applies in Michigan. We would effectively be talking the equivalent of a state-level coup, because powers that are vested in other officials would be illegally assumed by legislators acting,” Liedel said.
“If legislators wanted to blatantly violate the election law, which has criminal penalties, that would be their decision. But I have a feeling the attorney general [Democrat Dana Nessel] might have something to say to that. And it’s likely that they would not have the benefit of legislative immunity if they were not engaging in appropriate legislative action.”
A Nessel spokesperson did not return a request for comment.
Either way, some Democratic strategists continue to have concerns about what antics may occur during the Lame Duck session following the election if Trump loses Michigan.
A spokesperson for the Michigan Republican Party did not respond to a request for comment.
Chatfield spokesperson Gideon D’Assandro was evasive in addressing the scenario.
When asked multiple times whether the speaker and/or GOP caucus would support selecting Trump electors in the case of a disputed election and ordering them to cast their ballots for the president, regardless of the candidate Michigan voters actually preferred, D’Assandro only said: “That was the subject of the Atlantic article from a couple weeks ago that went around Twitter.”
He declined to comment further after multiple follow-up emails.
Amber McCann, spokesperson for Senate Majority Leader Mike Shirkey (R-Clarklake), did not directly respond to the question. McCann instead referred to Senate Concurrent Resolution 31 that was passed by the Senate last week.
The amended version of the resolution includes the following language: “That the Michigan Senate commits to the selection of electors to the Electoral College that will be faithful to voting for the candidate with the most votes for President in Michigan as certified by Michigan election officials.”
That resolution was adopted by the Senate and sent to the House. It in no way, however, prevents the scenario that some fear may happen, as concurrent resolutions are nonbinding and have no legal force. Legislators, in theory, would not be legally hindered by the measure if they wanted to move forward, regardless. After all, circumstances change.
Dec. 8 is Michigan’s deadline for state electors to be certified by Whitmer.
Whitmer spokesperson Tiffany Brown did not address an inquiry about the scenario directly, but said in an email: “The administration is working closely with the secretary of state to ensure that everyone in Michigan can vote safely and feel confident that their vote will be counted. We will follow the law and ensure every vote is counted.”
The governor has some experience with GOP shenanigans involving electors.
In 2012, while serving as Senate minority leader, Whitmer chaired the ceremonial Electoral College in the chamber during which all 16 of the state’s electors went for President Barack Obama.
That followed a contentious Lame Duck session with the GOP-controlled Legislature passing big conservative priorities like Right to Work and reinstating an emergency manager law weeks after voters scrapped it at the ballot box. Whitmer joked that it wasn’t “often that I have a gavel in my hand.”
“Last week, in this very chamber, we saw one of the most extreme and overtly political agendas in Michigan’s history rushed through under the cover of night, without any public input, that goes against everything that our democracy stands for and what our people are asking for,” Whitmer added. “There was no mandate for what took place here, only outrage after it was discovered what was happening. Special interests got their way, while the people of Michigan got locked out of the building. Literally.”
That vote occurred as then-state Rep. Pete Lund (R-Shelby Twp.) was talking about his legislation to change how Michigan’s electoral votes are awarded after Democrats had won the state in every presidential election since 1988, something which attracted national attention. Other blue states with GOP legislatures like Wisconisn and Pennsylvania also flirted with the idea.
Michigan is one of 48 states that awards electoral votes on a winner-take-all basis. Maine and Nebraska divide their electoral votes proportionally.
Under Lund’s plan, electoral votes would be assigned to the winners of each of the 14 congressional districts and award the remaining two votes to the state’s popular vote winner.
Republicans claimed that it would better represent rural areas in the state. A spokesman for then-Michigan GOP Chair Bobby Schostak told MLive that it “really provides a more true view of the Electoral College, because you have electoral members throughout the state who are able to represent the views of their community and constituency.”
Michigan’s delegation just happened to be split 9-5 in favor of Republicans at the time — and Lund had chaired a committee to help redraw the lines in 2011. So that meant that in 2012, GOP nominee Mitt Romney would have won nine of Michigan’s 16 electors, even though he lost the state to Obama by 10 points and more than 400,000 votes.
“It’s election rigging in favor of the Republicans,” then-Michigan Democratic Party Chair Mark Brewer told MLive. “They haven’t won a presidential race in this state since 1988. … When they can’t win elections with candidates and issues, they try to change the rules.”
The plan didn’t end up being taken up in the Legislature in years to come. And ironically, Trump would go on to win all 16 of Michigan’s electoral votes in 2016 anyway.