This puts America in a very dangerous position. Legal protections for the election do exist and are strong. The Constitution and federal law require the election of a president this November and state that the president’s term ends the following January. The Supreme Court has repeatedly held that once states grant their residents the right to vote, doing so becomes a fundamental right. Forty-nine states recognize the right to vote in their state constitutions and 26 guarantee that elections must be free and open. Any attempt by the president or state legislatures to deprive people of the right to vote, in order to ensure Trump’s reelection, would blatantly violate these rights. But a lot could still go wrong, especially at the state level.
The danger begins with the fact that, regardless of what people believe, the Constitution does not give Americans the right to vote for their president. Rather, the Constitution says that a college of electors votes for the president, and Article II of the Constitution gives states nearly unlimited power to decide how these electors are chosen. In the early years of the American republic, many state legislatures decided which presidential candidate the state’s electors would support. South Carolina used this method until 1868. Today, all 50 states grant their residents the right to vote for president, and the people’s vote determines which electors from each state will select the next president. However, any state could change its law and instead allow its legislature to decide which electors will choose the next president.
In other words, states have a lot of power in deciding how the election will run. Today, Republicans control 30 state legislatures and Democrats only 19, with one state divided. (Nebraska technically has nonpartisan legislators, but it is a reliably red state, so I include it with the Republican states.) These red-state legislatures control 305 electoral votes, and only 270 are needed to secure the presidency. Presumably, most red states, if not all, would appoint electors who would elect Trump for another four years. Of those 30 states, 22 also have Republican governors, which means in those states there would be no Democratic governor to veto Republican legislation taking away the people’s opportunity to vote for president. Those 22 states represent 219 electoral-college votes—perilously close to the 270 required for Trump to be reelected.
Could states really deprive Americans of the right to vote for their president? In Bush v. Gore, a conservative majority on the Supreme Court held that the state “can take back the power to appoint electors” at any time. And the Court is even more conservative today than it was in 2000, as Justice Brett Kavanaugh has replaced Justice Anthony Kennedy.
The more complicated question is not whether states can do this, but whether they would. Republican lawmakers have been steadfastly loyal to Trump throughout his tumultuous tenure. If Trump were to ask states to appoint electors instead of having an election, they certainly might follow his request, especially those states where the president enjoys wide popularity. In 24 of the 30 states with Republican legislatures, a majority of people approve of the president’s job performance, according to last month’s Gallup survey. Those states control 224 electoral votes—enough to throw the election’s results into doubt. States could also wreak havoc on the election by not taking steps now to prepare for voting during a pandemic. If only a few states allowed their legislatures to appoint electors, or postponed electoral selection indefinitely, the November election could result in no candidate receiving a majority of electoral-college votes.