U.S. President Donald Trump’s last-ditch efforts to reverse the election seem to come down to a far-fetched scenario, one in which Republican-led state legislatures choose the members of the Electoral College, overturning the will of voters.
Could it work? Election law experts are highly skeptical. And leaders of the Republican majorities in legislatures in key states, including Pennsylvania, Michigan, Arizona and Georgia, told The New York Times this week through their offices that they saw no role for themselves in picking electors.
That has not stopped some high-profile supporters of the president, including talk radio host Mark Levin and Gov. Ron DeSantis of Florida, from suggesting that Republican-led legislatures should consider ignoring the popular vote in close-fought states won by President-elect Joe Biden and handing their electoral votes to Trump.
This political gambit, to the degree that it’s an organized strategy at all, has a theoretical basis in law, according to experts. But if it were to proceed, it could cause widespread outrage and be seen as an attempt to subvert the democratic process.
Benjamin Ginsberg, until recently one of the Republican Party’s top elections lawyers, called the strategy an act of desperation, one that many Republican lawmakers would not buy into. "The most partisan Trump legislators might, but I believe enough would rebel at hijacking their constituents’ votes that such actions would fail,” he said.
Here’s how such a scheme would theoretically play out. The Constitution gives state legislatures the power to determine the "manner” in which electors are appointed to the Electoral College, the body of 538 people who formally choose the president. Every state has already done that, by specifying in its laws that the winner of the statewide popular vote is entitled to the state’s presidential electors (Maine and Nebraska apportion some electors by congressional district).
The Electoral Count Act, a 19th-century law, sets up the mechanism for how that takes place. It directs governors to certify both the election results and a slate of presidential electors to represent the will of the people. In general practice, governors certify electors chosen by the party of the presidential candidate who won their state.
The Electoral Count Act also says that in the event of "failed elections,” in which voters have not made a choice for president, state legislatures are empowered to step in and appoint electors. The 1876 law is ambiguous about what constitutes a "failed” election. But the law does contain a deadline for states to certify elections: the "safe harbor” date, which this year is Dec. 8. Electors chosen before that date cannot be challenged by Congress.
A flurry of lawsuits filed by the Trump campaign, most of which have been defeated in court, appear aimed at slowing down states’ certification timelines and possibly providing a pretext to declare a "failed” election.
At the same time, election law experts said none of the lawsuits presented evidence of widespread fraud that could reverse Trump’s deficits. With Arizona and Georgia added to Biden’s column this week, he has comfortably won the election with 306 projected electoral votes, 36 more than needed for a majority.
Bob Bauer, a leading Democratic elections lawyer and senior adviser to the Biden campaign, dismissed the notion of legislatures picking electors. "When all is said and done, you can’t stop the process from coming to the inevitable conclusion,” he said.
The idea of legislatures intervening for Trump gained currency in the days after Election Day, following months of Trump’s raging that the election would be "rigged,” a baseless accusation, although one embraced by many of his supporters.
On Nov. 5, as Pennsylvania’s gradual counting of mail-in ballots eroded Trump’s edge in the votes cast on Election Day, Fox News commentator Sean Hannity suggested the results should be invalidated. Sen. Lindsey Graham of South Carolina, a staunch Trump supporter, responded, "I think everything should be on the table.”
Earlier that day, Levin, the conservative radio host, had urged Republican state lawmakers to "get ready to do your constitutional duty,” writing in all capital letters on Twitter.
He was retweeted by the president’s son Donald Trump Jr. And DeSantis, the Florida governor, urged voters in Michigan and Pennsylvania, both with Republican-majority legislatures, to call lawmakers, who have it in their power to "provide remedies,” he said on Fox News.
Michigan’s attorney general, Dana Nessel, a Democrat, told reporters this week that it appeared the Trump lawsuits were aimed at stopping county and state boards from certifying the election so that the Legislature could send "a faithless slate of electors” to support Trump.
A spokesperson for Michigan’s Senate majority leader said that state law does not allow the Legislature to directly select electors or to award electors to anyone besides the winner of the popular vote. Biden won the state by nearly 150,000 votes.
In Pennsylvania, where Biden’s winning margin is currently more than 58,000 votes and the Trump campaign is in court asking for a delay in certifying the results, Republican leaders of the state Senate and House of Representatives said before Election Day that the General Assembly would have no role in choosing electors.
Pressed on the issue last week during a telephone news conference, Jake Corman, the Senate majority leader, said that "under normal circumstances,” the Legislature would have no role.
"Well, under any circumstances?” Corman was asked. He reiterated that Gov. Tom Wolf, a Democrat, appoints electors, not lawmakers.
At the same time, Republicans in the Pennsylvania General Assembly moved to conduct a review of the election and asked the governor to delay certification of the results, which is unlikely.
In North Carolina, which news organizations said Trump had won Friday, spokespeople for the Republican leaders of both chambers of the General Assembly said lawmakers would have no role in choosing electors. "State law outlines a legal process that has the political parties designate electors to be appointed by the governor,” said Patrick Ryan, a spokesperson for Phil Berger, the state Senate’s president pro tem. "We anticipate that process will be followed this year just as it has in the past.”
In Arizona, Mike Philipsen, a spokesperson for the Senate’s Republican leadership, citing an internal legal memo, said, "The Legislature cannot change the 2020 election results through changing the statutory selection process for presidential electors.” Biden won Arizona by more than 10,000 votes.
And in Georgia, where officials agreed to a Trump campaign demand that they recount more than 4.9 million votes — an effort that most likely will cost taxpayers in the millions of dollars — officials showed no inclination to appease the Trump forces by disrupting the Electoral College system. Biden’s lead in Georgia is more than 14,000 votes, which news outlets deemed sufficient for victory Friday.
An unusual joint statement Tuesday by Gov. Brian Kemp, Lt. Gov. Geoff Duncan and House Speaker David Ralston — all Republicans — declined calls for a special legislative session on election issues.
"Any changes to Georgia’s election laws made in a special session will not have any impact on an ongoing election and would only result in endless litigation,” the statement said.
The Georgia General Assembly is not scheduled to convene until Jan. 11 — well after the electors meet in state capitols around the country to formally vote for president Dec. 14.
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