Recounts, Lawsuits, & Ballots! Oh My!

The post-election uproar of 2020 continues. I have begun to receive questions from friends about how we can ensure the presidential electoral vote is counted correctly. More precisely: what does the U.S. Constitution say about how the electors are declared?

First, let’s start with the appropriate section of the Constitution: Article II, Section 1, Clause 2 which states the following.

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: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector. (Emphasis added)

U.S. Constitution. Article II, Section 1, Clause 2

It is as plain as day, that the ultimate authority for appointing presidential electors lies solely with the states–and more specifically, the state legislatures. Now currently, each state has passed laws that prescribe the election process to determine which electors may cast votes for the President in that state. For example, in my home state of Texas, the presidential electors are determined by the Texas Election Code sections 192.001, 192.005, and 192.006 among others.

So, unless a state law allows for an executive authority (such as an election board) to execute independent discretion about the time, place, and process of elections, such action is unlawful and is considered null and void.

What role do the courts play in the process? State courts may determine controversies between parties, but only to apply the state statutes as written. They may not re-write the laws simply because a new virus has been discovered and people are afraid of getting sick. The state legislatures may do that, but the courts may not.

What about the Supreme Court of the United States (SCOTUS)? They too may decide controversies between parties, and they may render opinions about the constitutionality of a law or lower court decision. However, they may not decide who is President of the United States. SCOTUS, for example, could opine that a state supreme court overstepped their authority in supplanting a state election statute; and thereby cause a recount (in that state) of only those votes which were cast in accordance with state law.

And for today’s hypothetical fun: if a majority of a state’s legislators believe that their electoral process has been corrupted in an election, it is altogether possible that, the legislature may change their laws to appoint a specific set of electors to cast a vote for a specific candidate.

This process will likely continue to play out for some time. But the good news is that our U.S. Constitution accounts for, and holds the remedy for, the shenanigans we are witnessing in the news right now. If you feel like you need to do something, don’t call SCOTUS, call your state representative and state senator and demand that they stand up as the guardians of your vote.