State Legislatures and the 2020 Electoral College Vote

October, 2020

Washington and Berlin – At Berlin's Lichtblick Kino last week a member of the audience asked about the U.S. Electoral College and how it might function in 2020.  Unfortunately, that seems to be an unanswerable question.

Trump campaign lawyers are exploring interventions by state legislatures to select state electors committed to Trump, regardless of outcome of the November vote in that state.  The rationale is that mail-in voting is suspect, a claim made almost daily by the president and his partisans.  The strategy is that Republican-controlled legislatures in sufficient numbers will give Trump the 270 votes he needs to remain in office.  Arguably, the strategy is constitutional, as elections are under the purview of the states, any federal statutes to the contrary notwithstanding.

If state legislatures are to get involved, however, it would be better for several of them quickly to join the National Popular Vote Interstate Compact, which commits states to award their electoral votes to the winner of the national popular vote.  From the Compact's webpage (emphasis added):

The National Popular Vote Interstate Compact will guarantee the Presidency to the candidate who receives the most popular votes across all 50 states and the District of Columbia. The Compact ensures that every vote, in every state, will matter in every presidential election. The Compact is a state-based approach that preserves the Electoral College, state control of elections, and the power of the states to control how the President is elected.

The National Popular Vote bill has been enacted by 16 jurisdictions possessing 196 electoral votes, including 4 small states (DE, HI, RI, VT), 8 medium-sized states (CO, CT, MD, MA, NJ, NM, OR, WA), 3 big states (CA, IL, NY), and the District of Columbia. The bill will take effect when enacted by states with 74 more electoral votes. The bill has passed at least one chamber in 9 additional states with 88 more electoral votes (AR, AZ, ME, MI, MN, NC, NV, OK, VA). A total of 3,408 state legislators from all 50 states have endorsed it.

Note that in nine states, at least one chamber has already passed the measure to join the interstate compact, so it is not out of the question for these states, or others, to act to bring the electoral vote into line with the popular vote and, in effect, end the dangerous plotting to circumvent democratic rule.