Bob Bauer, a top lawyer for President-elect Joe Biden’s campaign, argued that it is illegal and unconstitutional for legislators in Michigan and Pennsylvania to select Trump-Pence electors despite Biden winning the popular vote.
Federal legal restrictions, he argued, makes President Trump’s attempt to pressure Republican-controlled legislators to hand electoral votes to him futile.
“The Constitution does not permit the state legislature to do what Donald Trump wants the Michigan state legislature to do. The legislature has already prescribed the manner in which the electors in 2020 were to be chosen, and that is through the popular vote,” Bauer, a former White House counsel during the Obama administration, said in a briefing on Friday.
“Under federal law, the date for the selection of electors was fixed Nov. 3,” Bauer said. “They cannot turn around and on another date, well after that has passed, decide to move to a different mechanism for selecting the electors from that state. The popular vote governs — that is the system that was in place on Nov. 3.”
Michigan state House Speaker Lee Chatfield will reportedly meet with Trump at the White House on Friday. Many Republican officials have floated the possibility of Republican legislators rapidly changing state law to deliver the state’s Electoral College votes to Trump rather than to Biden, but Republican officials in many of the states in question have shut down that idea.
The federal Electoral Count Act governs how state officials can assign and certify electors. There is a “failed elections” mechanism that would allow states to choose new electors if the state’s voters did not decide on a presidential choice, and what qualifies as a “failed” election may be up for debate. Another provision of the law, called the “safe harbor” provision, requires electors to be chosen according to laws enacted before Election Day, and any disputes over those laws or the selection process must be completed before Dec. 8.
“Even if they were to ignore the federal statute, disregard that fact that Nov. 3 is behind us, and attempt by some mechanism here to send Trump-Pence electors to replace the Biden-Harris electors or to compete with them before the Congress, they couldn’t do that either because they would be violating the Constitution,” Bauer said. “The Constitution guarantees the right to vote — and the constitutional due process clause. And that’s presumably why Republican state legislative leaders have said in Pennsylvania, as well as in Michigan, that they wouldn’t do that.”
