Stopping “Stop The Steal” Why Article II Doesn’t Let Legislatures Overturn Elections
Benjamin Della Rocca* | 26.3 | Citation: Benjamin Della Rocca, Stopping “Stop The Steal” Why Article II Doesn’t Let Legislatures Overturn Elections, 26 U. Pa. J. Const. L. 585 (2024).
The 2020 presidential race was hard fought—before Election Day, and after. The loser, Donald Trump, spent weeks pressuring state legislatures to overturn his defeats. His arguments hinged on Article II of the U.S. Constitution, which, his lawyers insisted, permitted legislatures to intervene. While no legislature did so in 2020, the specter of postelection legislative interference still threatens our elections and risks a constitutional crisis.
This Article explains why Article II permits no such thing. Specifically, it argues that Article II’s grant of power—whatever its content—must be read as directed only toward pre-election legislatures, not postelection ones. This claim fills major gaps in the literature. First, previous scholarship assumes that Article II is silent, or ambiguous, on postelection interference. Blocking interventions would then depend on other authorities—like the Due Process Clause or state-constitutional provisions—ill-suited for the job. This Article shows, however, that Article II itself unambiguously bars postelection interference. Second, this Article sidesteps the debate about “independent state legislature” (ISL) theory—the focus of most scholarship on the 2020 election. Its argument holds, that is, regardless of what one believes about ISL doctrine. At the same time, this argument remains vital even after the Supreme Court snubbed ISL logic in Moore v. Harper. That decision leaves ample room, this Article argues, for Bush v. Gore-style debacles that foil state courts in constraining rogue legislatures.
To support its position, this Article advances four separate contentions, each sufficient to compel the above conclusion. The first contention analyzes Article II’s text according to intratextualist principles. The second unpacks the Framers’ original understanding of Article II. The third examines the original understanding behind Congress’s election-timing statute, which gives effect to Article II, Section 1, Clause 4. The fourth analyzes constitutional purpose. Finally, this Article also explains why the original understanding of Congress’s election-day statute—which let legislatures handpick presidential electors if their state “fail[ed]” to choose on Election Day—did not permit such handpicking after the 2020 election.
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* J.D. 2022, Yale Law School; B.A. 2016, Yale College. I am grateful to many for feedback and support, and particular thanks go to Akhil Reed Amar, whose seminar served as the starting point for this project. All views are my own and not necessarily those of any current or former employer.