Another batch of emails from John Eastman, the conservative legal scholar at the heart of President Trump’s effort to overturn the 2020 election, have been obtained and published by Politico. This new exchange was between Eastman and Rep. Russ Diamond, a Pennsylvania state legislator, and provides further insight into the arguments and tactics that pushed us to the brink of a constitutional crisis.
In the emails, Eastman and Diamond discussed having the Pennsylvania state legislature (where Republicans held the majority in both chambers) decree a new set of “untainted” vote totals through some ridiculous mathematical gymnastics. In this plan, tens of thousands of votes would have been thrown out based on little more than guesswork, using prorated percentages across different categories of ballots. As noted by Phillip Bump at the Washington Post, even this proposed arithmetic would have resulted in Biden still winning the state.
Underlying the conspiracy theories and fuzzy math is a more serious and pernicious legal theory central to most of Eastman’s claims: that state legislatures have some constitutional power to overturn, alter, or “decertify” their state’s presidential election results. This theory is constitutionally erroneous and should be firmly rebuked as part of preventing future attempts at election subversion.
State legislatures do have very broad power over how presidential elections are conducted. Each state is to appoint its members of the Electoral College in whatever manner the legislature directs. In every state, that has long meant holding a popular election as provided by state law. The voters pick from among slates of elector candidates who are nominated by each political party and pledged to vote for that party’s presidential ticket. In most states, only the names of the presidential and vice-presidential candidates and their party affiliations actually appear on the ballot, but these pledged members of the Electoral College are the persons really being elected.
State legislatures don’t have to hold presidential elections at all, even though it has been almost a century and a half since any state exercised that option. A state could, as some did in the early days of the republic, have the legislature itself choose electors. That’s the only other option that’s ever been used or even seriously considered, but in theory the states have very broad latitude to pick any method they want. They could say that the governor will appoint the electors, or that the electors will be chosen at random by drawing names out of a hat. Maine and Nebraska use this authority to award one elector to the popular vote winner in each congressional district, rather than the winner-take-all method used by every other state.
It is this near-plenary power that Eastman and other supporters of the former president have claimed gives state legislatures a blank check to overturn their state’s election results as well. In other words, Republican state legislators could convene and award electors to Trump’s slate even after the voters chose Biden. Some have pushed this theory so far as to claim legislatures can somehow revoke their 2020 electoral votes right now, long after the election is over and Biden has taken office. That is patently absurd, and to their credit it has been rejected by Republican legislative leaders in states such as Wisconsin.
Even in its more limited form covering the period between Election Day and Inauguration Day, Eastman’s theory ignores the plain text of the Constitution in an attempt to empower state legislators beyond their constitutional limits. State legislatures get to decide how electors are chosen, but Congress gets to say when electors are chosen. “The Congress may determine the time of choosing the electors,” as Article I succinctly puts it. Congress has done so by designating the first Tuesday after the first Monday in November, otherwise known as Election Day.
Election Day is the deadline for the states to pick and implement their chosen method for appointing presidential electors. After that, state legislatures have no further say in the matter. The state law election process is carried out and the results are certified by the state’s executive branch officials, with any disputes litigated through the courts.
Legislators can not see the election results, decide they don’t like the outcome, and then change their mind about letting the people have their say. That would defeat the entire purpose of Congress’s time-setting power and render it meaningless, on top of how it more obviously offends any sense of fundamental fairness. You can’t decide how you’re going to do something (choose electors) after the appointed time for doing it has already passed.
In addition to Eastman’s mistaken reading of the Constitution, advocates of this claimed power for state legislatures have leaned on 3 U.S.C. § 2. That provision says in full 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.”
The failed elections statute is intended to address a narrow set of unlikely scenarios. Historically, some states used runoff elections for president if no candidate cleared 50% of the vote, and the failed election provision was originally crafted to permit that choice. It has also been considered to cover extreme disasters interrupting the election, such as hurricanes or a major terrorist attack. It does not cover a scenario where the election results are merely disputed by the losing candidate’s party, especially not when the courts have already decisively resolved the matter under the state’s laws as they stood on Election Day. In those scenarios, as was the case in every state in 2020, the state’s election has not “failed” to produce an outcome.
In reforming the Electoral Count Act, Congress should tighten the failed elections section to make clear that this deadline extension narrowly applies to only genuine force majeure catastrophes. Congress should also require that a state’s rules for handling a disaster scenario be set by law prior to Election Day, rather than being decided afterwards on the fly. And in general, a reformed Electoral Count Act should contain a provision stating what’s already in the Constitution: every state must decide how it will choose its members of the Electoral College no later than Election Day. Legislative tampering after that date should be treated as null and void both in the courts and when Congress gathers to count the electoral votes, and the governing statute should clearly say so.
