We've been down this road as well. It's not even close to being that simple. But it would be quite interesting to see what would happen if a State legislature attempted to ignore the will of their voters and change the laws which govern the election process after an election.
It clearly is that simple as that, and if we are talking Penn, for example the State constitution allows for it. What the US Congress chooses to do is a different matter.
I stand corrected, it is the US Constitution and not the Pennsylvaina constitution.
The U.S. Constitution gives to State Legislatures the
duty of choosing the "manner" in which electors are chosen. "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". A State could decide to change the manner at some point in the future and move to electors being chosen by the legislature; but currently the
manner they have directed thru their legislation for "appointing" electors is thru popular vote of the citizens and
not by fiat of the state legislatures.
The U.S. Constitution gives to
Congress the power to determine
the date that electors are chosen. "The Congress may determine the time of choosing the electors". Congress has chosen thru Federal statute (3 USC 1 §1)
the date on which electors are chosen "
The electors of President and Vice President
shall be appointed, in each State,
on the Tuesday next after the first Monday in November". In this case, Tuesday, November 3, 2020 was the date required by Congress, under its Constitutional mandate, for electors to be appointed by voters choosing candidates and their respective slate of electors
as directed under the existing election laws passed by State legislatures. This date becomes important later on in this short essay.
Federal law (3 USC 1 §5) also prohibits States from changing the laws governing how any contested election dispute is settled after the election has been held. "If any State shall have provided,
by laws enacted prior to the day fixed for the appointment of the electors [November 3, 2020], for its final determination of
any controversy or contest concerning the appointment of
all or any of the electors of such State, by
judicial or other methods or procedures..."
Pennsylvania, as an example, is clear in its State Constitution on the manner in which contested elections are settled and which branch makes the final determination. The Constitution of Pennsylvania - Article VII § 13 Contested elections: "The trial and determination of contested elections of electors of President and Vice-President... shall be by the courts of law, or by one or more of the law judges thereof. The General Assembly shall, by general law, designate the courts and judges by whom the several classes of election contests shall be tried" and in the same section, just as Federal law does,
prohibits any changes after an election has been held—"but
no such law assigning jurisdiction, or regulating its exercise,
shall apply to any contest arising out of
an election held before its passage".
The reason for both Federal and State provisions prohibiting changing the laws that govern elections
or contested elections after an election is obvious. Doing so would usurp the will of the citizens who have cast their votes in good faith, by retroactively changing the law.
So using Pennsylvania again as a currently prime example, its legislature is formed by the Pennsylvania Constitution and all of its authority is derived from it. The Constitution does NOT say in Article II that each
legislature shall appoint electors; it says "Each
state shall appoint" "a number of electors" thru the manner its legislature directs. But, the U.S. Constitution does NOT provide for how each State Legislature is to be fashioned and governed by the individual States; that is left for the States to decide thru their individual State Constitutions. The U.S. Constitution is largely silent on how States govern themselves except that "The United States shall guarantee to every state in this union a republican form of government", its then up to the individual States to decide how to meet that guarantee thru their State Constitutions.
The point here is that if the Pennsylvania Legislature were to decide to ignore the election and vote its own slate of electors by passing legislation
after the election has been held, due to a contested election, it would be violating the State Constitution mandate on how contested elections are resolved, Pennsylvania Constitutional and Federal laws that prohibit retroactive legislative changes after an election, and the U.S. Constitution which gives to Congress the power to mandate "the time of choosing the electors" which was November 3rd
and therefore has already passed. Which is why, for all of the reasons above, it is extremely unlikely that they would even attempt to do so. They may give some lip service to it in order to coddle some Trump supporters. Actually trying to get away with it would run an extraordinary political risk with a lot of angry voters who turned out in droves, in many cases at a good deal of inconvenience, and who may have suffered a good deal of anxiety about voting during a pandemic.
And if the validity of ballots cast on Nov. 3 is called into question, the Pennsylvania legislature could decide to offer its own slate of electors by invoking Article II of the U.S. Constitution. That section grants state legislatures the right to designate the manner in which electors are selected.
There is NO U.S. Constitutional Article II power granted,
independent of the State, to the Pennsylvania legislature to invoke in appointing a slate of electors. That power is granted to the State of Pennsylvania, "Each
state shall appoint". The U.S. Constitution further adds "in such manner as the Legislature thereof
may direct". The difference between the
shall and
may is important (isn't legalize fun?).
The U.S. Constitution places a
burden on the State saying that the "
state shall appoint". It also says "in such manner as the Legislature thereof
may direct", and the legislature may and indeed has directed a manner; BUT
not independent of the State to which the burden is given nor independent of the State Constitution under which the legislature was created, from which it derives its powers, and by which it is governed.
The
power granted to appoint electors flows this way: The U.S. Constitution grants the power to THE STATE to appoint electors; THE STATE,
thru its Constitution, in turn has created a legislature that can enact laws
under the State Constitution that direct the manner of appointment (under
current law thru its citizens who vote in elections). What the U.S. Constitution has NO provision for is a State Legislature to act outside of, or to violate, its own State Constitution.
There is much more to all of this, but that's more than enough for now. Sorry about all of the bold type, underlining, and all caps. It's somewhat complicated stuff with all of the intersections of Federal and State Constitutions, laws, duties, and obligations. So, it's not easy to communicate without adding a lot of emphasis here and there.
If anyone should reply to this very long post, please don't quote the entire thing. Quote the relevant part or a portion of it. It clutters up the board when entire long posts are quoted.
