Commentary

No, Pennsylvania Lawmakers can’t Pick their own Electors

More than a month after Election Day, President Trump continues to dispute his loss to Joe Biden in the courts and in the media. One of Trump’s last options was to try to convince state legislatures in battleground states like Pennsylvania to ignore election results and pick Electoral College electors that favor Trump. This would be a violation of both the power delegated to state legislators by the U.S. Constitution and by Pennsylvania law.

Even before November, there were suggestions that Republican legislatures could find a way to choose electors who would side with Trump no matter the election outcome. Then the idea was brought to the fore post-election by radio talk show host Mark Levin. He came out swinging with this Nov. 5 tweet:

 

Levin is fully bought-in to the idea that Republican state lawmakers have the final say over choosing their states’ electors. It set many conservatives on a warpath calling for legislators to act—and sparked a Trump-backed lawsuit that Trump appointed judges threw out.

But does the idea even pass constitutional muster?

As Levin correctly cites in his tweet, Article II of the U.S. Constitution delegates power to state legislatures to pick their electors. But he assumes the Pennsylvania Legislature has done nothing since the Constitution’s ratification in 1788 to define how it would make that decision. In fact, it has, and Levin’s assumption is wrong. 

In 1937, the Pennsylvania Legislature passed Act 320, which laid out the state’s election code. Section 1501 of the code specifically states (emphasis added):

“[T]here shall be elected by the qualified electors of the Commonwealth, persons to be known as electors of President and Vice-President of the United States, and referred to in this act as presidential electors[.]”

This clarifies that Pennsylvania voters—referred to in bold as “the qualified electors of the Commonwealth”—choose the presidential electors. In effect, the Pennsylvania legislature took their authority delegated to them by the U.S. Constitution and delegated it further to the voters of Pennsylvania. This law was in place on Election Day 2020.

Prior to the election, it was the Left who had conspiracy theories buzzing about Pennsylvania legislators overriding the rule of law. A piece published prior to the election in left-wing magazine The Atlantic suggested Republican leaders were actively working with the Trump campaign to overturn election results and pick their own electors. It sparked a vast liberal outcry on social media. Then Pennsylvania Senate Majority Leader Jake Corman quickly clarified:

 

Since then, both Corman and Pennsylvania Republican House leaders have on multiple occasions publicly reaffirmed that fact. In an interview with The Philadelphia Inquirer, for example, Corman asserted that the only way the Legislature would become involved in elector selection would be if the results from the election hadn’t been certified by the time the Electoral College met.

On December 8, the U.S. Supreme Court dismissed a lawsuit brought by a group of Pennsylvania Republicans attempting to prevent certification of Pennsylvania’s election results, clearing the way for those results, a Biden win by more than 80,000 votes, to be certified.

On December 14, the Electoral College met, per the U.S. election code, and the Democrat Party’s chosen electors cast Pennsylvania’s 20 electoral votes for President-elect Biden, helping him reach 306 votes against Trump’s 232.

More than any other event, the final Electoral College vote puts an end to Republican hopes to change how electoral votes are cast in the 2020 election.

Still, one Pennsylvania lawmaker has proposed a resolution to override state law and allow the Legislature to appoint electors. Some congressional Republicans are attempting to block Pennsylvania’s electors from being counted when Congress receives them on January 6. And Pennsylvania’s GOP Electoral College electors also cast votes for Trump—even though only the Democratic electors were counted.

These desperate attempts have little chance of success and seem more aimed at virtue signaling to Trump loyalists than having an actual impact on elections.

The truth is, there is tradition around voting in Pennsylvania, but, more importantly, there are laws. Those laws and the powers they delegated to Pennsylvanians in the voting booth should be honored—even if the result was not what one side would wish.

At the same time, wherever there is voter fraud, every pain should be taken by authorities to prove it and ensure there are consequences. Lawsuits should be duly investigated by law enforcement and litigated by state and federal prosecutors, as it has always been.

Moreover, the Pennsylvania Legislature has already begun holding hearings and introducing legislation to fix the many issues that cast a cloud over Pennsylvania’s electoral process. For example, the last-minute, mail-in ballot changes that raised suspicions of systemic fraud must be corrected and never be allowed to happen again.

If there was voter fraud on a mass scale, it must be investigated, evidence must be brought forward, and it must be adjudicated in the court of law. But those seeking to use isolated instances of voter fraud to erase legally-cast ballots are overriding the will of the people.

To continue to insist the election was stolen without having evidence risks undermining trust in representative democracy, which has served our nation since its founding. Without this trust in our most foundational institutions, the free and civil society we all cherish cannot flourish. 

Jennifer Stefano is the vice president and chief innovation officer at the Commonwealth Foundation. She is the Vice Chair of Broad & Liberty. You can follow her on twitter at @jenniferstefano.