Political gambit unlikely to succeed
State legislatures not expected to pick electors for Trump
President Donald Trump’s last-ditch efforts to reverse the election seem to come down to a far-fetched scenario, one in which Republican-statelegislatures 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 legislature sin key states, including Pennsylvania, Michigan, Arizona, Georgia and North Carolina, 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 legislature s should consider ignoring the popular vote in close-fought states won by presumptive 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 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 time lines 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.
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.
Michigan’s attorney general, Dana Nessel, a Democrat, told reporters thisweek that it appeared the Trump law suits 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.
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 Georgia, where Biden leads by 14,000 votes and 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.
The Associated Press has not declared a winner in Georgia because the vote tallies are subject to the recount.
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.