Covid-19 and the Presidential Election: What if the States Picked the Electoral College Delegates?

What if we held a presidential election but  no one came?  The April  7, Wisconsin primary demonstrated the problems that occur when the right to vote and demands of presidential elections confront the reality of Covid-19 and shelter-in-place orders.  What if the coronavirus persists to the general election, impacting the ability of individuals to early vote or cast a ballot on November 3?  Ultimately, the states could select the presidential electors, or Congress could pick the president.  If so, who wins?

            Many worry about several presidential election scenarios.  One is that President Trump will postpone or cancel it.  Alone he cannot do that  because the date of federal elections is set by law as the first Tuesday following the first Monday in November.  Alone the president cannot cancel or move this date, unless somehow the Supreme Court would rule that the National Emergencies Act would allow him to override a law.  If it did, the Court would be going against the Wisconsin Supreme Court’s logic when it prevented Wisconsin Governor Tony Evers from issuing an executive order delaying the elections, ruling that the emergency powers given to him only allowed a setting aside of administrative rules and not statutes.

            Postposing the presidential election also does not work for constitutional reasons.  Section One of the Twentieth Amendment states that the term of the president shall end at noon on January 20.  If there is no election there is no president or vice-president after that date, with the vacancy then filled by then Article II, Section One, Clause 6 of the Constitution along with the Presidential Succession Act that would hand the presidency to the Speaker of the House, presumably Nancy Pelosi.

            Others have proposed expanding vote by mail as an option for 2020.  Congress is unlikely for partisan reasons to approve this, and even if it did it is not clear if all states have the infrastructure or capability to implement in time.  There are also questions about security, potential fraud, and the federal government overruling state election bureaus and telling them how to administer federal elections.

            There is one final failsafe—instead of holding elections to chose the presidential elections to pick the president, the states can go back and do what they originally did and what the Constitution allows—pick the electors themselves.

            Article II, Section One, Paragraph two entrusts to  state legislatures the authority to select the presidential electors.  As the Supreme Court reminded America in Bush v. Gore:  The “individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”  It is merely by the grace of  state law we get to vote to select the electors who pick the president.  But nothing requires this, and presidential elections in the age of Covid-19 means state legislatures, in a public health crisis, could simply select the electors themselves.

            While letting state legislatures pick the electors may not be a good idea, consider what would happen if they did. It takes 270 electoral votes to win the presidency.  According to  Ballotpedia, there are 21 states where Republicans have a trifecta—controlling both houses of the legislature and the governorship—and Democrats have that in 15 states.  Assuming in those 36 states straight party line votes would award electoral votes by party, Donald Trump would start with 216, Joe Biden, the presumptive Democratic nominee, would have 195.  This leaves 14 states, with 127 electoral votes under split control.  These states are: Alaska, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, North Carolina, Pennsylvania, Vermont, and Wisconsin.  Again, according to Ballotpedia, of these 14 states, there are several where the legislatures have large enough majorities that they can override  the governor.

This means  move Kansas’ and Kentucky’s electoral votes to Trump since the Republicans control both house of the legislature and a simple majority can overrule the Democratic governor, and he  has 230.  Move  Maryland and Massachusetts to Biden along with  District of Columbia’s three electoral votes and he has 216.  This leaves 10 states, with 92 electoral votes under split control.

How might those remaining states vote?  Assume a compromise in each state where they allocated proportionally based on congressional districts and splitting the two electoral votes each state receives based on having two senators.  This adds ten electoral votes to each (Trump 240, Biden 226).  Now assume the distribution of electoral votes in these remaining ten states follows the congressional voting patterns in 2016.  Of these 72 districts, Trump won 50 in 2016 and Clinton  won 22.  Award these  the same to Trump and Biden and  2020, Trump wins the presidency with 290 electoral votes to Biden’s 248.

Alternatively, assume these ten states cannot hold November 3, elections and cannot reach a compromise on  how to award the electoral votes.  With neither Trump nor Biden possessing the required 270 electoral votes, Article II, Section One, Paragraph Three and the Twelfth Amendment call for the House of Representatives to pick the president, with each state getting one vote and the winner needing a majority of the states.  However, this is the House elected in November 2020, and they would not vote until sworn in, in January 2020. Currently, even though Democrats have an overall majority in the House, Republicans maintain a 26-22 partisan majority control of state congressional delegations, with Michigan and Pennsylvania tied.  Assume no shift in partisan control, Trump wins. 

Canceling the popular vote to select the electors and decide the presidential race is a highly unlikely scenario.  But were it to occur the odds presently favor a Trump victory again in the electoral college, or  possibly in the House were it to go that far.

Presidential Emergency Power: Can Trump Build a Wall?

The more President Trump changes his mind about declaring a national emergency to build his wall the less likely it is that he has the authority to do it.  But even if he had declared a national emergency immediately, it is unlikely the Constitution or congressional statute allows him to do it.  That is perhaps why Trump has not invoke emergency powers to build the wall–basic principles of American law suggest he lacks the authority to do it.
The US Constitution is a power conferring document.  There are no extra-constitutional powers.  Before the president or any branch of the national government does something it needs to trace authority back to the explicit text of the Constitution or the power must be necessarily implied.  In the case of the president, his authority comes from Article II of the Constitution, or he may be delegated some additional authority to him from Congress via Article I.
Under Article II section 1, executive power is vested in the president.  Under Article II, section 3, the president shall take care that the laws are faithfully executed.  Through either of these clauses the president can issue an executive order and declare a national emergency, but what does that really mean?  Does it mean presidents can ignore existing law or do whatever they want for whatever reason?  Doubtful.  President’s cannot manufacture an emergency and then invoke undefined  powers to ignore the law or the Constitution; this idea violates the very idea of rule of law and the concept of American constitutionalism.
Presidents do not get the right to decide what is an emergency and do whatever they want.  The Supreme Court said this arguably one of the most important cases of all time, Youngstown v Sawyer, 343 U.S. 579 (1952).  Here President Truman declared an emergency and nationalized the steel mills during the Korean War to prevent a labor strike that would have affected production.  If ever there was a crisis, war was it, and the Court ruled against Truman.  In Youngstown many legal scholars think Justice Jackson’s concurrence is best statement ever on presidential power.  Acting with congressional assent presidents have  enhanced power, with congressional silence they only have the powers given to them by Article II, and acting against congressional wishes, presidents have diminished authority.  Truman was acting on his own and lacked the authority to act.  However this third scenario is where Trump is right now when it comes to the wall and the emergency here is no greater than what Truman faced.  There are at least two laws that limit Trump’s discretion to act.
The first law is the 1974 National Emergencies Act.  Responding to abuse by previous presidents, this Act sought to constrain unregulated use of presidential declarations of national emergencies.  Unfortunately, the Act does not define what a national emergency is, leaving it up to the president’s discretion, subject to congressional veto or check on the declaration.  However, there are three problems with this Act. 
First, the original concept of this legislative veto is arguably unconstitutional  as a result of other Supreme Court decisions such as INS v. Chadha, 462 U.S. 919 (1983).  Second, it is not clear that Congress can give the president unbridled or unrestricted discretion to act, especially to disregard  other congressional statutes or provisions, unless it specifically says so.  While the Court is reluctant to invoke the delegation doctrine to limit presidential authority and has not done so since the New Deal, the wide-open language of the National Emergencies Act is a perfect place for the Roberts Court to do this.
But third, there is another law that points to why the president cannot invoke the National Emergencies Act to build the wall.  It is the 1974 Budget Act.  Responding to abuses by Richard Nixon who impounded or refused to spend money allocated by Congress, the Act placed limits on the ability of the president to do this.   In Train v. City of New York, 420 U.S. 35 (1975), the Supreme Court upheld the Budget Act saying that once Congress has allocated money for something the president is not free to disregard the law and spend or not as he wishes. 
The question is, does the authority grant to the president under the National Emergencies Act supersede the Budget Act?  There is no indication that the latter was meant to free the president to disregard spending priorities mandated by Congress.  If there were, Congress would have said so in the Act.  But even if such an intent or purpose was implied, it is doubtful given the purposes of the Budget and National Emergencies Acts that these statutes could be interpreted to be expanding as opposed to contracting presidential authority.  But, as noted above, if Congress did intend this,  it is unconstitutional.  Finally, supposedly Trump is looking at raiding money from hurricane  relief funds.  There is no indication that in allocating this money Congress intended it to be diverted for other purposes.  Whatever general intent the Emergencies Act has, it cannot override specific intent or a mandate to spend as decided by a particular statute. 
There are two addition  problems with Trump invoking the National Emergencies Act.  First, the Act is not for politically manufactured emergencies, especially ones created by the president himself.    Trump today could end the emergency by agreeing to sign a spending bill or continuing resolution.  Giving presidents the ability to invoke a national emergency during negotiations with Congress so that they can get their way is like letting someone take their bat and ball and going home if they are losing.  The National Emergencies Act is not a tool to bypass the Constitution.   Under Chevron v. NRDC, 468 U.S. 1227 (1984), courts are supposed to give deference to reasonable executive agency determinations of ambiguous statutes.  Conservatives, including Justice  Gorsuch, have increasingly questioned Chevron deference and there many be a majority either unwilling to give Trump the benefit of doubt regarding what a national emergency is, finding his use  or interpretation is unreasonable.
Second,  the longer and more Trump delays or vacillates in declaring an emergency the more it shows that the border problem is not an emergency in any ordinary dictionary meaning of the term.
Perhaps then why the President is not invoking the National Emergency Act simply is that  he has been told he will not win this legally, on top of the fact that he is not winning this fight politically.