- Incredibly, the Constitution as interpreted by Bush v. Gore (2000), lays out no limitation whatsoever on state legislatures as to the power to pull back (i.e., steal) the choice of electors from the voters.
A federal statute, 3 U.S.C. § 5, as interpreted by William Rehnquist, guarantees that the electors selected in the general election to represent a state will be counted in the Electoral College so long as they are selected under state laws that predate the election and are chosen at least six days before the Electoral College convenes on December 14, without specific requirements that they be chosen by the voters rather than state legislatures.
This is, in my opinion, both because of the idiotic basis of the decision in originalism, and because of the bald politics of that decision, which sped along the process of the delegitimization of judge-made precedent in this country, as commented upon below by John Paul Stevens in his dissent in that 2000 case.
So this would have to be litigated, in the newly stacked federal courts, no less.
The implications we have thus far heard discussed in the media – including in the excellent Atlantic piece yesterday – are merely assessments of the political viability of such an action.
As we should know by now after the Russian issue, Trump is an expert at plowing forward and getting Republican operatives and politicians to follow his lead, no matter how anti-democratic or mad, and getting away with it.
The silence thus far today in response to Trump literally saying “get rid of the ballots” and “there won’t be a transfer,” on the part of Republican governors, Secretaries of State, and state legislators, is the most chilling thing I have yet witnessed in the current struggle for the survival of American democracy.
“Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
-Justice John Paul Stevens [Dissent] Bush v. Gore (2000)