Prior to the 2020 general election, some commentators suggested that President Donald Trump and his allies would attempt to undermine the election’s result by inducing Republican-controlled state legislatures to directly appoint pro-Trump electors to the Electoral College. As predicted, after losing his re-election bid to President Joe Biden, President Trump pressured some leaders in Republican-dominated state legislatures to ignore the election’s result and to appoint electors who would vote for him in the Electoral College. Although these efforts were unsuccessful, the volatility of the current political landscape suggests that this issue might emerge again in a future election. In discussing possible safeguards against such an attempt, many commentators have focused on the Electoral Count Act and other legal measures. Most, however, have not addressed the possibility of a constitutional safeguard. This Note uses the 2020 presidential election as a case study and argues that the Due Process Clause of the Fourteenth Amendment provides a constitutional safeguard that can restrain states from overturning election results through direct appointment of presidential electors.
Anh Duy Nguyen, "Whose Electors? Our Electors!": Due Process as a Safeguard Against Legislative Direct Appointment of Presidential Electors After an Election, 63 B.C. L. Rev. 407 (2022), https://lawdigitalcommons.bc.edu/bclr/vol63/iss1/9