Constitutional theory vs. practice

A couple of weeks ago, in response to a post here, I wrote a comment about how the state legislatures couldn’t really save this election because each state has passed its own election laws under the authority in the Constitution to the legislatures, and (to the best of my knowledge) no state’s legislature reserved to itself the power to ignore the outcome of a popular election and appoint the Electors themselves. I argued that because these state laws exist, and because most of these states have Democrat governors who would refuse to sign any legislation altering the status quo, there wasn’t anything the legislatures could do.  

I’m a Constitutional textualist and originalist. Clarence Thomas is my favorite Supreme Court Justice ever. But Trump’s legal team has articulated a textualist position that surprised me.  

They are arguing that the state legislatures have the authority under the Constitution to “take back” their power and that they do not have to follow the usual lawmaking process (bill in both houses, compromise committee, vote, sign by governor) in exercising their power to appoint Electors under the Constitution. They are arguing that the process laid out in the Constitution reserving power to the state legislatures alone (no mention of governor’s assent) was meant to be a check against election corruption.  

Well, that’s a nice argument as far as it goes. The kind of thing you might spend a few minutes discussing in ConLaw 101.  

I watched a few excerpts from the Republican legislative hearing in Gettysburg last week. I didn’t listen to the whole thing. What I listened to made me feel a little better, but I didn’t suppose much would actually happen as a result of it. And since I didn’t listen to all of it, I missed the bigger picture: this was an evidentiary hearing, which has not yet happened in the courts. They presented evidence both from fact witnesses (people who observed corruption), and also from experts about the mathematical and statistical impossibilities.  

Well, guess what. The Pennsylvania Legislature is acting on it. They have submitted a joint resolution from both houses declaring the election irreparably compromised, the results fraudulent, and the certifications invalid, and claiming their Constitutional power and authority to choose their state’s Electors.  

Funny, no one in the media is talking about it. I came across it on the President’s youtube channel. They posted two interviews with Jenna Ellis and one with a Pennsylvania State Senator, Doug Mastriano (also a couple with Giuliani, though I haven’t watched those yet). The interviews were from Newsmax and OAN. They explained the strategy and action.  

Ellis pointed out that all of their efforts in the courts have been to get the courts to instruct the state legislatures to do their duty under the Constitution. But this strategy bypasses the courts altogether. The legislatures can act on their own.
But who ever would have thought that the individual legislators would have the guts to actually do it?  

The President’s legal team is following the same strategy in Arizona, with a hearing scheduled on Monday. They hope that the Arizona Legislature will then also take back their power to appoint Electors.  

I hope that they are moving forward with this strategy in the other swing states, though it appears that so far they are prioritizing the states that Sidney Powell is not suing. (I haven’t done an Electoral College count to see how many Electors are needed to either deny Biden 270, or to give Trump an outright win, and which combinations of states need to be flipped or invalidated to get there.)  

No doubt the other side will challenge the state legislatures in court after they act. But that’s a topic for another post. Also I’m wondering what stunts Pelosi might pull if the election is thrown into the U.S. House.  

Anyway, the point of this long post is simply to say, Wow, how quaint, people actually reading and following the Constitution! No, not how quaint—how radical!