COVID-19 and the presidential election: What if states picked the electors?

COVID-19 and the presidential election: What if states picked the electors?

What if we held a presidential election and no one came? The April  7 Wisconsin primary demonstrated problems that can occur when the right to vote and the demands of presidential elections confront the reality of COVID-19 and shelter-in-place orders. What if the coronavirus persists to the general election, impacting the ability of individuals to vote early or cast a ballot on Nov. 3? Ultimately, the states could select the presidential electors, or Congress could pick the president. If so, who wins?   

Many worry about several presidential election scenarios. One is that President TrumpDonald John TrumpHouse panel approves 0.5B defense policy bill House panel votes against curtailing Insurrection Act powers after heated debate House panel votes to constrain Afghan drawdown, ask for assessment on 'incentives' to attack US troops MORE will postpone or cancel it. Alone he cannot do that, because the date of federal elections is set by law as the first Tuesday in November. To cancel or move this date, the Supreme Court would have to rule that the National Emergencies Act allows the president to override a law. If it did, the court would be going against the Wisconsin Supreme Court’s logic when it prevented Gov. Tony Evers from issuing an executive order delaying the primary elections, ruling that his emergency powers allowed him to set aside administrative rules but not statutes.        

Postposing the presidential election also would not work for constitutional reasons. Section 1 of the 20th Amendment states that the term of the president shall end at noon on Jan. 20. If there is no election, there is no president or vice president after that date; the vacancy is then filled by Article II, Section 1, Clause 6 of the Constitution, along with the Presidential Succession Act that would hand the presidency to the House Speaker, presumably still Rep. Nancy PelosiNancy PelosiHouse votes unanimously to extend deadline for coronavirus small-business loan program Overnight Defense: House panel votes to ban Confederate flag on all Pentagon property | DOD report says Russia working to speed US withdrawal from Afghanistan | 'Gang of Eight' to get briefing on bounties Thursday OVERNIGHT ENERGY: House approves .5T green infrastructure plan | Rubio looks to defense bill to block offshore drilling, but some fear it creates a loophole | DC-area lawmakers push for analysis before federal agencies can be relocated MORE (D-Calif.)

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Others have proposed expanding voting by mail as an option for 2020. Congress is unlikely for partisan reasons to approve this, and even if it did, it is not clear that all states have the infrastructure or capability to implement it in time. There are questions about security, potential fraud and the federal government overriding state election bureaus and telling them how to administer federal elections.   

There is one final fail-safe. Instead of holding elections to choose the president, the states can do what they originally did, and what the Constitution allows: pick the electors themselves.        

Article II, Section1, Paragraph 2 entrusts to state legislatures the authority to select the presidential electors. As the Supreme Court reminded America in Bush v. Gore: The “individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”  

It is merely by the grace of state law that we get to vote to select the electors who pick the president. But nothing requires this, and presidential elections with the threat of a virus such as COVID-19 means that state legislatures, for the protection of public health, could select the electors themselves.

Although this may not be a good idea, consider what would happen if the legislatures did so. It takes 270 electoral votes to win the presidency. According to Ballotpedia, there are 21 states where Republicans have a trifecta — controlling both houses of the legislature and the governorship — and Democrats have that in 15 states. Assuming in those 36 states straight party line votes would award electoral votes by party, Donald Trump would start with 216 and Joe BidenJoe BidenBiden campaign raised M more than Trump in the month of June RNC, Trump campaign raised 1M in June Michigan shuts down most indoor bar service in bid to prevent virus resurgence MORE, the presumptive Democratic nominee, would have 195. This leaves 14 states — Alaska, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, North Carolina, Pennsylvania, Vermont, and Wisconsin — with 127 electoral votes under split control. In several of these states, legislatures have large enough majorities to override the governor.

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This could  move Kansas’s and Kentucky’s electoral votes to Trump, for example, since the Republicans control both houses of those legislatures and a simple majority can overrule the Democratic governors; that would give Trump 230 electoral votes. Move  Maryland and Massachusetts to Biden, along with District of Columbia’s three electoral votes, and he would have 216. That would leave 10 states, with 92 electoral votes under split control.

How might those remaining states vote? Assume a compromise in each state where they allocated proportionally based on congressional districts and split the two electoral votes each state receives based on having two senators. This adds 10 electoral votes to each candidate (Trump, 240 and Biden, 226).  Now assume the distribution of electoral votes in these remaining 10 states follows the congressional voting patterns in 2016. Of these 72 districts, Trump won 50 in 2016 and Hillary ClintonHillary Diane Rodham ClintonRepublican Nicole Malliotakis wins New York primary to challenge Max Rose Trump's evangelical approval dips, but remains high How Obama can win back millions of Trump voters for Biden MORE won 22. Award these the same way to Trump and Biden and that would mean that in 2020, Trump wins the presidency with 290 electoral votes to Biden’s 248.

Alternatively, assume these 10 states cannot hold Nov. 3 elections and cannot reach a compromise on how to award the electoral votes. With neither Trump nor Biden possessing the required 270 electoral votes, Article II, Section 1, Paragraph 3 and the 12th Amendment call for the House of Representatives to pick the president, with each state getting one vote and the winner needing a majority of the states. However, this is the House elected in November 2020 and these members would not vote until sworn in, in January 2021. Currently, even though Democrats have an overall majority in the House, Republicans maintain a 26-22 partisan majority control of state congressional delegations, with Michigan and Pennsylvania tied.  If we assume no shift in partisan control, Trump would win. 

Canceling the popular vote to select the electors and decide the presidential race is a highly unlikely scenario. But were it to occur, the odds presently favor a Trump victory again in the Electoral College — and possibly in the House, were it to go that far.

David Schultz is a professor of political science at Hamline University in St. Paul, Minn. Follow him on Twitter @ProfDSchultz.