By Blake Neff
A law professor at Pepperdine University has authored a column suggesting that, if Donald Trump wins November’s presidential election, state legislatures should consider undermining democracy by rigging the Electoral College.
“It is increasingly likely that we will reach precisely the kind of scenario that the Founders worried about — divisive political discourse threatens to thrust a dangerous candidate into office who appears inclined to govern more like a monarch than a president,” writes Derek Muller in The Washington Post. “Opportunities remain for cooler heads to prevail in our presidential election. And state legislatures should consider doing so this year.”
Muller’s solution to the Trump problem is simple: If voters appear likely to commit the egregious error of electing Trump, state legislatures should simply redefine how presidential electors are chosen.
“State legislatures should consider whether to retake [the authority to choose electors] in the 2016 election in an effort to stop Trump,” he says. “Many could consider this proposal, but the Texas state legislature is a natural place to start. It could easily pass a law returning power to the legislature. On Election Day, the legislature could decide whether to vote for Trump or Mitt Romney, the prior Republican nominee; former Texas governor Rick Perry, who dropped out of the 2016 race early on; a popular GOP figure such as Condoleezza Rice, whose name has recently been floated as an alternative; or their own junior Sen. Ted Cruz, presently trailing Trump in the Republican Party delegate count.”
Muller’s strategy is, at the least, entirely constitutional. The Constitution says, and the Supreme Court has ruled, that a state’s method of choosing presidential electors is entirely in the legislature’s hands. Currently, most states allot all their electoral votes to whatever candidate gets a plurality in a statewide vote. But Maine and Nebraska allow candidates to win individual congressional districts, and in the country’s early days most legislatures chose electors directly instead of holding a vote.
But no state has failed to hold a popular vote for president since Colorado in 1876.
Muller’s idea wouldn’t even require a large number of states to rebel to stop a Trump presidency. If Trump wins a narrow victory, just one or two states diverting their electoral votes elsewhere could deny him a majority. In that case, the election would be thrown to the House of Representatives, where the Republican majority would be able to choose any of the three top candidates.
Even Muller admits, though, that such a dramatic step would, at the least, be opening a Pandora’s box for the American republic. It could, after all, be used in any future election as well, and it could even be used as a weapon by one party to steal the presidency from the other. For example, Wisconsin and Michigan both have Republican-controlled governments but have voted Democratic in every recent presidential election. Both governments could use Muller’s strategy to override the public will and choose Republican electors.
But Muller dismisses claims that such a stunt would be fundamentally anti-democratic.
“Voters’ preferences would still be reflected — albeit indirectly — in the decisions made by the state legislatures, whose members are elected by the people,” he says. “And the existence of the electoral college, no matter how electors are chosen, means that the people, technically, have already been indirectly selecting their presidents.”
Muller doesn’t dwell at all on what what the popular reaction might be to the legislative coup he proposes.
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