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Last week, The Atlantic's Barton Gellman reported that, in Pennsylvania, "three Republican leaders told me they had already discussed the direct appointment of electors among themselves, and one said he had discussed it with Trump’s national campaign." What does that mean?
Trump has repeatedly (and falsely) claimed that mail-in ballots are likely to be fraudulent. If Biden were to narrowly win the Pennsylvania popular vote on the strength of mail-in ballots, the Republican-controlled legislature could argue that the official results are illegitimate. Then, the legislature could attempt to set aside those results and appoint electors loyal to Trump. In a close election, switching Pennsylvania's 20 votes in the Electoral College could allow Trump to retain the presidency.
The chair of the Pennsylvania Republican Party, Lawrence Tabas, told Gellman that he had discussed the possibility with the Trump campaign.
“I’ve mentioned it to them, and I hope they’re thinking about it too,” Lawrence Tabas, the Pennsylvania Republican Party’s chairman, told me. “I just don’t think this is the right time for me to be discussing those strategies and approaches, but [direct appointment of electors] is one of the options. It is one of the available legal options set forth in the Constitution.” He added that everyone’s preference is to get a swift and accurate count. “If the process, though, is flawed, and has significant flaws, our public may lose faith and confidence” in the election’s integrity.
Tabas' remarks generated considerable outrage. In response, a spokesperson for Tabas did not claim he was misquoted or deny that Tabas had discussed the possibility with the Trump campaign. Instead, the spokesperson described The Atlantic article as "an out of context, pre-emptive farce that projects conspiracy, delay and even violence onto Republicans."
Gellman also spoke with Senate Majority Leader Jake Corman (R), who said that, in certain circumstances, the legislature would be willing to directly appoint pro-Trump electors. “We don’t want to go down that road, but we understand where the law takes us, and we’ll follow the law," Corman said.
After The Atlantic article published, Corman tweeted that he had not talked about directly appointing electors with the Trump campaign.
This does not contradict The Atlantic's article, which said Tabas, not Corman, had those discussions. Meanwhile, Corman's spokesperson "affirmed" Corman's comments to Gellman. Specifically, Corman does not want to directly appoint electors but is prepared to do so. "[H]e will do whatever the law directs," the Corman spokesperson said.
What Tabas, Corman, and Republicans in Pennsylvania are contemplating would undermine the foundation of American democracy and negate the voices of millions of voters. It's a radical and disturbing possibility. At the same time, these Republican leaders are backed by some of America's largest and most prestigious corporations.
Corporate complicity
Popular Information reviewed the last two years of Pennsylvania campaign finance records for two committees associated with Tabas and Corman: the Senate Republican Campaign Committee (SRCC) and Friends of Jake Corman. The records reveal that Tabas, Corman, and the Pennsylvania Republican Party are contemplating this anti-democratic scheme with the imprimatur of major American corporations. The largest corporate contributors to the SRCC and Corman from 2019 to 2020 include:
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Popular Information contacted all eight companies and asked if they were comfortable supporting politicians who are open to setting aside votes and directly appointing electors in a presidential election. None of the companies responded.
Silence speaks volumes
Corman and Tabas, of course, could not directly appoint presidential electors on their own. They would need the support of the rank-and-file of the state legislature. Popular Information contacted every member of the Pennsylvania State Senate and asked if they were open to setting aside the votes and directly appointing electors.
Several Democrats responded, including Senate Democratic Leader Jay Costa, who provided this response:
Two of the most important hallmarks of democracy are fair elections and the peaceful transition of power. These are not partisan principles; they are central to our form of government, regardless of party affiliation. They are what separate us from authoritarian and totalitarian regimes.
The admission by Republican officials in Pennsylvania that they are already planning, in coordination with President Trump's re-election campaign, to nullify the results of our General Election and instead appoint "loyal electors" is an affront to all voters and our democracy as a whole. All ballots must be counted. Voters must determine our next president - not a few Trump loyalists hand-picked by Republican legislative leaders.
...This election must be held legitimately, without political interference or the threat of authoritarian schemes to keep President Trump in office. We urge our Republican colleagues in the General Assembly to pledge to conduct this process fairly and accept its results peacefully.
No member Republican member of the State Senate, however, responded to Popular Information's inquiry. Since the publication of The Atlantic article, Costa has dismissed talk of direct appointment of electors as a "hypothetical" and "conjecture." At the same time, Costa has not changed his substantive position.
Is this even legal?
The idea that the state legislature can step in and directly appoint electors is based on Article II, Section I of the Constitution: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."
So, under the Constitution, there is no constitutional right to a popular vote in Pennsylvania or any other state. The Pennsylvania legislature, however, has already chosen a manor of selecting its electors. And the method it chose was the popular vote. Jessie Allen, an associate professor of law at the University of Pittsburgh, argues that, once the legislature makes that decision, it cannot change it just because it didn't like the outcome of an election.
[O]nce a state legislature proceeds to have an election, they have chosen to appoint their electors that way and now that legislature can’t just arbitrarily declare that they’ve decided to scrap those electors and choose new ones.
Once votes are cast, electors are chosen – we don’t know who they are if the results are still being counted, and/or legally contested, but they have been chosen. The state legislature is not empowered to choose an alternate set.
But just because directly appointing electors after a popular vote might be illegal, doesn't mean it isn't problematic. Disputes over the validity of a certain slate of electors may ultimately be decided by the courts. Trump has spent most of his first term, stocking the courts with political ideologues. On Saturday, he nominated a new Supreme Court Justice, Amy Coney Barrett, who Trump says must be confirmed before Election Day so she will be in place to resolve election-related disputes.
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