The scheduled meeting threatens two kinds of danger. At the largest level, it threatens the system of democratic presidential elections: If state officials start claiming the right to overturn elections because of vague claims about “fraud,” our democratic system will be unworkable. But in a more specific and immediate way, it threatens the two Michigan legislators, personally, with the risk of criminal investigation.
The danger to democratic elections is well understood. The Constitution authorizes state legislatures to decide how states choose presidential electors. For more than a century, every state legislature has chosen to do ao by popular election. According to one school of thought, though, a state legislature could choose to set aside a popular vote if it doesn’t like the result and choose different electors instead. This is a pretty undemocratic idea, as well as one that misreads the history of election law: the National Review recently described it as “completely insane.” (State legislatures have the power to change the system for choosing electors in future elections, but not to reject an already conducted election just because they don’t like the result.) Nonetheless, the president is pushing for it. By so far refusing to go along with Trump, Republican state legislators have been standing up for the idea that fair, democratic elections are more important than any individual president. If Shirkey and Chatfield are reconsidering that view, they are playing with the possibility of throwing out the results of a free and fair election. That’s not something that the system comes back from easily.