President Donald Trump met this afternoon with Michigan Senate majority leader Mike Shirkey and Michigan House of Representatives speaker Lee Chatfield, both Republicans in a state where Republicans hold both houses of the state legislature, but Democrats hold the governorship. It has been widely rumored that Trump is pushing a strategy to get Republican-controlled state legislatures in key swing states to select pro-Trump slates of electors, rather than the electors who were chosen by popular vote for Joe Biden. In theory, this could be justified: the Constitution allows state legislatures to decide how electors are selected, and it need not be by popular vote. In extreme cases, if a popular vote was held but so marred by fraud or violence (as happened in 1876, when Democrats were outright murdering black voters who wanted to vote Republican), a case could be made for state legislators voiding the popular vote as unreliable and selecting their own slate. There were nods in this direction in Florida in 2000 and Hawaii in 1960. But it would face significant legal challenge if no court has voided the state’s election. The legislature may be bound by its own laws holding a vote, unless the governor goes along with repealing them, as won’t happen in Michigan. Such a step would be radical, unprecedented, and likely to lead to mass mob violence. National Review has wisely editorialized against it.
But here’s the thing: a step this drastic needs the participation of a lot of state legislators across at least three states. It needs a public groundswell led by the president. But where is that leadership? Yes, one can infer the strategy from Trump’s legal team’s approach. Yes, there are media reports based on anonymous sources. But a public rebellion against a genuinely fraudulent popular vote requires open public leadership to coalesce. Elected officials need the cover of advocates at the head of their party. Where is it? To date, neither the president, nor anyone in the Trump White House, nor anyone in the Trump campaign, has made a public case for this strategy. Here is White House Press Secretary Kayleigh McEnany at today’s briefing:
Q Okay. Thanks, Kayleigh. What is the President planning to discuss this afternoon with the two Michigan lawmakers? And will he ask them to have the state legislature appoint electors who will support his re-election? What’s the nature of that meeting?
MS. MCENANY: So he will be meeting later on. This is not an advocacy meeting. There will be no one from the campaign there. He routinely meets with lawmakers from all across the country.
Q When will you admit you lost the election?
Q Kayleigh, at what point does the President concede the race and allow for a proper transition to the Biden team?
MS. MCENANY: So, right now, there’s ongoing litigation.
Q So, back to the topic of concession. Like we said earlier, is there something that the President needs to see before making that call? Is it the end of these lawsuits, whenever they do wrap up, all of them? States certifying results for different counties? Or December 14th when the Electoral College casts its ballots?
MS. MCENANY: Look, the President, again, is pursuing ongoing litigation and taking it day by day, and we’ll wait for that litigation to play out.
Q So just to clarify, it’s the end of that litigation that we would need to see before getting a call —
MS. MCENANY: There’s an entire constitutional process of electors casting their ballots, and I will leave that to the President.
This vague defensiveness is not how you talk when you think you have public opinion on your side to bulldoze longstanding procedural norms.
Then we have the joint statement of Shirkey and Chatfield following their meeting with Trump: “We have not yet been made aware of any information that would change the outcome of the election in Michigan and as legislative leaders, we will follow the law and follow the normal process regarding Michigan’s electors.” That’s legislator-speak for “no.”
If you are a Democrat of conspiratorial bent, you might say that this is all cover for a secret plot. But the coordinated action of six or more state legislative bodies (every state but Nebraska has a two-house legislature) is not really possible to organize entirely in secret. Legislators are politicians, well aware that they serve at the pleasure of the voters; if the president and his team will not dare make the case in public for a step this radical, and lay out the case for its public and legal justifications, it becomes prohibitively difficult to line up support for it among a legislative majority. Moreover, state legislatures have their own dynamics; Chatfield at present is simultaneously engaged in beating back efforts by his own back-benchers to impeach Democratic governor Gretchen Whitmer over her coronavirus response. And two Republican senators, Mitt Romney and Ben Sasse, have already spoken out against the appointed-electors scheme, which is two more than there are senators on the record favoring it.
Legislatures, for all their flaws, are not designed to take public risks without laying a strong groundwork in public opinion first. On some level, Donald Trump and his team understand that the appointed-electors scheme would be massively unpopular, and they are shying away from advocating it in the open. So long as that continues, they will lack the power to convert the support of a noisy minority into a chain of legislative majorities in their corner. And if that is the case, people around the president need to begin considering how he can arrange an exit strategy to accept the inevitable with some shred of his dignity intact. Because nobody will follow a leader who won’t even speak out to show the way.