New op-ed at Washington PostEverything: state legislatures can select presidential electors themselves to stop Trump

I have a new opinion piece at Washington PostEverything: "If no one else stops Trump, the Electoral College still can. It’s in the Constitution." It calls for states to consider selecting presidential electors for themselves this cycle, rather than leaving the selection of electors to a popular vote. It includes the following idea:

“State legislatures should consider whether to retake this authority in the 2016 election in an effort to stop Trump. Republicans control 31 state legislatures. Many could consider this proposal, but the Texas state legislature is a natural place to start. It could easily pass a law returning power to the legislature. After Election Day, the legislature could decide whether to vote for Trump or Mitt Romney, the prior Republican nominee; former Texas Gov. Rick Perry, who dropped out of the 2016 race early on; a popular GOP figure like Condoleezza Rice, whose name has recently been floated as an alternative; or their own junior Sen. Ted Cruz, presently trailing Trump in the Republican Party delegate count.”

Setting aside the extremely low likelihood of doing so or political outcry, I wanted to emphasize the possibility--one that had not yet been examined anywhere (as far as I saw). Indeed, it also has the virtue of being a measure that a state legislature could enact at any time before the election day--and perhaps even after.

There are three extra wonky things to consider that I couldn't fit into the piece and are better examined in detail here.

First, would the Voting Rights Act prevent states from passing such a law? It is hard to say that Section 2 would prevent states from passing such a law--that is, it's not immediately obvious that transferring the selection of electors from the people to the state legislature would necessarily "result[] in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." There is likely much that could be written on the subject, but I simply flag the matter as a possible complicating factor.

Second, would a state legislature need to pass a law? Strictly speaking, the task is left to the "legislature" of the state to decide the "manner" of the selection of electors. The governor has no role in that selection process. So could a state pass a law (signed by the governor) that would bind future legislatures in how they select presidential electors? Or could the state legislature simply choose to ignore any gubernatorial veto and select the electors themselves? My inclination is that the legislature could do it without gubernatorial interference--despite recent Supreme Court suggestions that "legislature" might not always mean "legislature.

Third, would the state legislature have to do so before the election, or could it do so after the election and effectively nullify the results? That would be an even more radical version of my proposal. Recall that the Florida legislature was preparing to select its own electors in mid-December as Bush v. Gore was pending before the courts. But that was a case in which there was a dispute over which slate of electors should be certified, and the legislature needed to at to comply with the "safe harbor" provision of federal law concerning the selection of electors. It might be the case that a state legislature could simply select its own elect its own slate and send the competing slate to Congress for its own examination of who "won" the election. (EDIT: probably not, given that the time is fixed by federal law for selecting electors--it would have to occur in the legislature on Election Day.)

In any event, it's a controversial--but creative!--idea I've been kicking around and thought it would be interesting to float to a broader audience.