Thread by @jgeltzer

THREAD

There's a very short law that's causing a lot of angst right now.

With @bartongellman @FareedZakaria & more talking about 3 USC 2, let's take a look at why an attempt to use it simply to override voters' will would be unlawful. /1

Here's the whole law:

"Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct." /2

The worry is that "Trump can pressure Republican-controlled legislatures to ignore the popular vote in their Democratic-leaning swing state & instead select an Electoral College slate that supports him," as @tribelaw @jentaub & I said in @TheAtlantic. /3 theatlantic.com/ideas/archive/…

But that attempt would be unlawful.

1st, a legislature's claim that Election Day "failed" is something a candidate who won the state's popular vote can & should challenge in court if it's unsupported.

My @ElectionTask colleagues & explain here. /4 static1.squarespace.com/static/5e70e52…

2nd, when the Constitution says states choose presidential electors "in such Manner as the Legislature thereof may direct," it means the legislature passes a law--which means governors get a veto. Legislatures can't do this alone.

@tribelaw @dorfonlaw: /5 dorfonlaw.org/2020/09/state-…

3rd, there's constitutional due process. "When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental."

That's from Bush v. Gore & it means a legislature can't override the people's vote. /6

It's important that to discuss these issues, because Trump seems willing to play dirty to cling to power.

Let's make sure that even as we warn of foul play we explain why those moves would violate the law.

Because, ultimately, we may need judges & more to enforce that law. /END