Thanks to, Jerry Goldfeder, an Election Lawyer, and Special Counsel at Stroock LLP in New York. He Teaches Election Law and the Presidency, at the Fordham Law School, and is the Author of the Treatise Goldfeder’s Modern Election Law, now in its Fifth Edition, for this post.
If Vote-by-Mail Fails in the 2020 General Election in November, there is another Option to Pick Electoral Delegates
Rather than Rely on Vote-by-Mail, States could Change the Rules of the Presidential Election. Currently, and for about 150 years, each State’s Voters choose Presidential Electors on Election Day.
The Process appears even more Unusual in that Electors are Chosen pursuant to Each State's Law rather than according to any Standardized National Rules. For example, Maine and Nebraska Voters choose their Electors by a Combination of Statewide and Congressional District Results, while the Remaining Forty-Eight States and Washington, D.C., Award their Electors to the Candidate who Wins Statewide. Further, All States Award their Electors to the Candidate with a Plurality of Votes, irrespective of the Margin of Victory. However peculiar the American Presidential Election System appears, it is exactly how our Founders wanted it.
But State Legislatures may Decide to Select Electors Directly, Bypassing the Voters Altogether.
Each State shall Appoint, in such Manner as the Legislature thereof may Direct, a Number of Electors, Equal to the Whole Number of Senators and Representatives to which the State may be Entitled in the Congress: but No Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be Appointed an Elector.
The Electors shall meet in their respective States, and Vote by Ballot for two Persons, of whom One at least shall Not be an Inhabitant of the same State with themselves. And they shall make a List of All the Persons Voted for, and of the Number of Votes for each; which List they shall Sign and Certify, and Transmit Sealed to the Seat of the Government of the United States, Directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, Open All the Certificates, and the Votes shall then be Counted. The Person having the Greatest Number of Votes shall be the President, if such Number be a Majority of the Whole Number of Electors Appointed; and if there be more than One who have such Majority, and have an Equal Number of Votes, then the House of Representatives shall immediately Choose by Ballot One of them for President; and if No Person have a Majority, then from the Five Highest on the List the said House shall in like Manner Choose the President. But in Choosing the President, the Votes shall be taken by States, the Representation from each State having One Vote; A Quorum for this Purpose shall Consist of a Member or Members from Two Thirds of the States, and a Majority of All the States shall be Necessary to a Choice. In every Case, after the Choice of the President, the Person having the Greatest Number of Votes of the Electors shall be the Vice President. But if there should remain Two or more who have Equal Votes, the Senate shall Choose from them by Ballot the Vice President.
Imagine, then, Florida and Georgia doing this. Forty-five Electoral College Votes would be Off-the-Table, in the Trump Column without One Voter in those States Casting a Ballot.
Voting Rights Advocates would, of course try to Stop this Selection Hijacking, but can the Supreme Court be Relied upon to Strike down such Wholesale Disenfranchisement?
NYC Wins When Everyone Can Vote! Michael H. Drucker
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