Republican legislatures should put their cards on the table
If Republicans in Michigan want to be able to invalidate future elections, they should try passing that legislation — because they can't do it now
President Trump's invitation to the Michigan legislature to overturn the results of the presidential election in their state has driven panic about the precarious state of American democracy to new levels — and for understandable reasons. But while others are shouting and wailing and (more productively) preparing legal briefs, I think it's worth taking a moment to sharpen the focus on what precisely is being asked of that legislature, and what it would mean if they put their money where their mouth is. At this point, I'm almost inclined to say they should do precisely that, just so that we know, finally, whether they truly believe what they increasingly aver.
Let's begin by pointing out that Trump has not brought Michigan's legislators to Washington to show them evidence of widespread election fraud. If Trump had any actual evidence of widespread fraud — any evidence at all — his lawyers would be presenting that evidence in court, the optimal venue for making such demonstrations. They have not done so — indeed, they have barely tried to do so. Nor have they found any support from the officials responsible for running the election to substantiate their claims. Most of Trump's court cases do not even allege fraud, and he has lost all but one of those cases to date, with the one victory having an exceedingly minor effect on a small number of rejected mail-in ballots in Pennsylvania, a change that will have no effect on the outcome.
So what possible case can Trump make to the Michigan legislators he has invited to the White House? What possible rejoinder can he make to their entirely reasonable response that if his claims of fraud were provable, he'd have proved them in court — and that if he can't do so, then they are powerless to act on his behalf?
The rejoinder is that they are not powerless. The U.S. Constitution gives state legislatures the responsibility for deciding the manner of choosing the electors. If they believe the election was stolen — or even if they merely believe the result to have been a catastrophe for the Republic that the people will come to see in the fullness of time — then they have a moral obligation to reverse that crooked outcome. And they can reasonably expect the people — who, in this view, actually voted for the president, or will wish they had — to reward them politically for doing so.
Should they take Trump up on the suggestion? If they believe in the foregoing theory, maybe they should.
Not for this election. For this election, any such action would be purely destructive political theater with no ability to alter the outcome. The Michigan legislature already made the determination years ago of how the state's electors would be chosen — through legislation that established the rules of the election just completed. To change their mind after the fact is likely illegal, and even if it isn't it would require new legislation, which the governor would have to sign, something Democrat Gretchen Whitmer obviously isn't going to do.
If they persisted in sending an alternative slate of electors to Washington in spite of the governor, the question would arrive promptly before the Supreme Court. To hold for the legislature, the Court would have to conclude not only that state courts have no right to alter the electoral process duly enacted by the legislature (the substance of the recent decision rejecting an extension for mail-in ballots in Wisconsin, and the basis of a key concurrence in Bush v. Gore), but that the legislature has a right to simply choose electors at will and in defiance of laws they themselves passed. That's not going to happen. And even if it did, it still wouldn't reverse the election outcome, as flipping Michigan would not be enough to win Trump a second term.
But 2020 was not the last presidential election. There's a larger principle at stake, and I think this is an opportune time for Republicans to stand for that principle — if they truly believe in it and aren't just trolling. If state legislatures really are absolutely sovereign in this matter, then the presidential elections we hold are actually just advisory. If that's their view, Michigan Republicans should say so by passing legislation clarifying that fact. They could specify that, in the event that the legislature disagrees with the choice of the electorate, they may choose a different slate of electors, and bind them to vote according to the legislature's preference rather than the people's.
Would such a law stand up in court? Would it have force even if the governor vetoed it, on the grounds that the legislatures are absolutely sovereign in this area? I strongly doubt it — but it would force the real question underlying these recent court decisions, namely, whether there is some discernible purpose to the Constitution's design, some reason why its procedures are set up the way they are, and some basis for political legitimacy encoded thereby. The law I describe would not run afoul of any procedural impediments; it could only be overturned if it affronted the Constitution on some more fundamental basis. If the courts upheld it, we would know that the answer is no.
Would it lead to a political backlash? I believe it would, on a huge scale — but again, putting their cards on the table would force the question. Through the use of the gerrymander, Republicans in Michigan, Wisconsin, and a number of other states have established state legislative majorities that have endured despite losing the popular vote in the state in some recent elections. If they could retain that legislative majority after voting to disenfranchise the entire state population of its votes for president, then again we'd know the answer to an important question: Whether Republican voters in Michigan believe that the legitimacy of political power derives from the consent of the governed. And again, the answer would be no.
We need to know the answer to these questions, free of the populist cant that postures as the people's will. If American government needs to be protected from the people, for the sake of some larger principle, this is a chance for Republicans not only to say so, but to do something about it. Prominent Republicans like Utah Sen. Mike Lee are already arguing that too much democracy is a problem — a view with a long and serious history in political philosophy, and one that partly informed our original constitutional design.
Maybe it's time for Republicans to say whether they agree — and, if they do, to put it in writing.