With President Donald Trump and a good portion of the Republican Party unwilling to accept that Joe Biden has won the election, an idea has been tossed around on the right: What if they get Republican state legislatures in states Biden won to appoint Trump electors instead?
To be clear, this would amount to an attempt to steal the election, defying the will of voters and ignoring the election results. But some Republicans are talking about it anyway (claiming the results can’t be trusted because of some fraud for which there is no evidence).
Conservative radio host Mark Levin called for legislatures to act, tweeting: “GET READY TO DO YOUR CONSTITUTIONAL DUTY.” The president’s son Donald Trump Jr. retweeted Levin’s tweet. And the New York Times’s Maggie Haberman reported that President Trump himself discussed the possibility at a meeting with advisers Wednesday.
Fox News reporter John Roberts mused on air Wednesday that “the anger out there in these red states is so deep and so palpable that GOP legislators may have a difficult team seating Biden electors.” (“That would be something,” his colleague Bill Hemmer said in response.)
So far, not many Republican legislators in the relevant states have outright endorsed this plan, but there are a few. “Our state legislature must be prepared to use all constitutional authority to right the wrong,” Pennsylvania state Rep. Daryl Metcalfe (R) wrote on Facebook.
Yet even if many more Republican legislators did begin to rally around this plan, there are a great many obstacles — practical, political, and legal — that make it quite unlikely to succeed.
To understand what’s going on here, you have to realize that the Electoral College will be made up of actual people — 538 people in total who will cast the votes that officially choose the next president in the United States. The way it’s supposed to work is that, if Biden wins a state, his chosen people become the electors for that state. But this idea from Trump supporters is essentially that GOP state legislatures in states Biden won should just pick Trump electors instead.
Now, to start off with the electoral math: Biden leads in states that would give him 306 electoral votes. Of the states he won somewhat narrowly, five — Michigan, Wisconsin, Pennsylvania, Arizona, and Georgia, have Republican-controlled state legislatures.
But successful shenanigans to flip one or even two of these five states to Trump would not be enough to change the outcome. To deprive Biden of 270 electoral votes, Trump would need to overturn the results in three of these five states. That already makes it less plausible that it would work.
The next major problem is that all of these states except Georgia have Democratic statewide officials who obviously would not be willing to go along with a plot to steal their state’s electoral votes for Trump.
So before even getting into the legal nitty-gritty, it’s clear that there would be significant resistance among statewide officials to any legislative plan to award electors in states Biden won to Trump.
Then there is the problem that it’s very far from clear whether state legislatures can legally even do this, especially after the election has concluded, and especially if they don’t use the ordinary legislative process requiring a governor’s signature. Indeed, some have asserted that it would be flat-out illegal for state legislatures to appoint Trump electors in states Biden won at this point.
The legal situation here is complex, with the the US Constitution, federal law, and laws in the individual states all coming into play.
For instance, the Electoral Count Act, as amended in 1948, says that the duty of actually certifying the electors in each state falls to state governors (not the legislature). So the Democratic governors in Michigan, Wisconsin, and Pennsylvania surely wouldn’t meekly accept GOP state legislatures’ plot to swap in their own electors. The governors would certify Biden electors, meaning there would conceivably be two sets of electors in each state.
Meanwhile, Pennsylvania state law quite clearly says that electors are chosen in a popular vote in the state’s general election, as the Washington Post’s Greg Sargent writes. Wisconsin and Michigan state law also give no role to the legislature in choosing electors. Taking current law at face value, the legislatures really can’t appoint electors.
Against all this, Republicans would try and claim that the power of the Constitution’s literal text should wipe out vast swaths of existing federal and state law. Specifically, they’d say that Article II, Section I says (emphasis added) “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” They’d ask, doesn’t that mean the legislature really gets to do whatever it wants with electors? Not the governor or (in Wisconsin and Michigan’s case) bipartisan elections boards?
This assertion of power would be particularly mind-boggling because, in Pennsylvania, Wisconsin, and Michigan (at least) it would have to be done outside the ordinary state lawmaking process, to avoid a veto from the Democratic governor. Essentially, GOP legislators would have to claim that they can wipe out state laws purely through their own authority.
This would fly in the face of long-existing Supreme Court precedent — in the 1932 Smiley v. Holm decision, the Court held that, no, the Constitution doesn’t let a legislature just ignore the governor’s veto on election matters.
Of course, there’s a different Supreme Court now. Justices Neil Gorsuch and Brett Kavanaugh recently embraced the legal theory that, in Gorsuch’s words, “state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”
But it’s unclear if three other justices on the Court are with them. And boy, would it be a lot for the Court to throw out state and federal laws and Supreme Court precedent left and right to anoint Trump the winner of an election Biden clearly won. (Another problem, as Ohio State University law professor Edward B. Foley wrote in a law journal article last year, is that it could violate the due process clause of the Constitution to change election rules after the election has already happened.)
Another wrinkle, though, is that it’s not even necessarily clear that the Supreme Court would be the decider here. The Constitution gives the role of counting the electoral votes to Congress — which in this case would mean the new Democratic-controlled House and a Republican-controlled Senate (because the Georgia runoffs wouldn’t yet be decided). It’s unclear how a serious dispute would be settled (Foley’s article has some ideas), but it’s worth noting that several Republican senators have already congratulated Biden or have recognized that he appears to have won.
Finally, there’s another consideration: if Republican legislators actually tried to steal the election in this way, many people would get very, very upset, and the situation could get very, very ugly.
In a piece disparaging what he called this “completely insane electoral college strategy,” National Review editor Rich Lowry used the word “thermonuclear” to describe the backlash that would ensue, and called it “a poisonous idea that stands out as radical and destructive, even in a year when we’ve been debating court-packing and defunding the police.”
Where that “thermonuclear” rage would lead, we can only guess. But anyone concerned with the basic stability of the nation would have reason to think twice about going down this road.
If enough GOP legislators are sufficiently ideologically radical and beholden to Trump, they could choose to give it a try anyway. But there are many obstacles in the way of this gambit’s success.