Donald Trump’s insistence that he lost the election due to fraud is clearly false, given the rigor of the count and the five-digit margins in key states. His campaign’s challenges in court are likely to fail, and many are being thrown out. But there is one more possible step where standards of evidence might be much lower: state legislatures’ selection of electors to the Electoral College.
This is a failure point at which the language of the Constitution may give state legislators the power to ignore the popular vote result in their state, and use some other pretext (like “fraud”) to vote for whom they wish. It’s never happened before, but lots of things are happening that have never happened before.
This scenario, described clearly by Jeannie Suk Gersen at The New Yorker, is very unlikely—but still likely enough to occupy one’s thoughts while lying awake at night:
[South Carolina Republican Senator Lindsey] Graham has laid some groundwork for the strategies that might remain even after rebuffs both at the polls and in court. In an interview with Sean Hannity on Fox News last Thursday, as it became clear that Biden would soon be declared the winner, Graham signalled his approval of the idea that Republican-controlled state legislatures might appoint electors who would cast votes for Trump, even though Biden won those states’ popular votes. Referring to Article II of the Constitution, which provides that a state “shall appoint” its electors “in such Manner as the Legislature thereof may direct,” Governor Ron DeSantis, of Florida, also urged people in battleground states to push their Republican legislatures to override popular-vote results.
It would be outlandish for a state legislature to deviate from the wishes of the state’s voters. But states have the power to determine that fraud affected the vote count and choose Presidential electors who do not reflect that supposedly faulty result. States with Republican legislatures that could, theoretically, override a popular vote in favor of Biden include Pennsylvania, Georgia, Arizona, Michigan, and Wisconsin. This possibility remains far-fetched in any of these states, perhaps particularly Pennsylvania, where last month, the Republican majority leaders of the state Senate and House wrote, in an op-ed, “The only and exclusive way that presidential electors can be chosen in Pennsylvania is by the popular vote. The legislature has no hand in this process whatsoever.” The majority leaders reaffirmed that commitment on Friday. But, on Tuesday, a group of Pennsylvania lawmakers announced that it wants the legislative committee to conduct a “comprehensive examination” of “irregularities and inconsistencies” in the election “prior to the certification of the election results and the empanelment of Pennsylvania’s electors to the Electoral College.”
If several states’ electors were to diverge from the popular vote, in theory, on December 14th, the Electoral College vote could result in a win for Trump, and, on January 6th, the newly seated Congress tabulating the electoral votes could declare Trump reëlected.
Again, it seems wildly unlikely that a few Republican state legislatures might cancel out the results of the highest-turnout U.S. presidential election of the past 120 years. It would be a genuine coup d’état, justified with the barest of legal pretexts. Most of the country would reject it, and America would be ungovernable for a while—unless the installed regime manages to convince military and law enforcement to repress public protest. (Looked at that way, this week’s sudden installation of Trump loyalists at the Pentagon and elsewhere is worrisome.)
It’s tempting to dismiss this possibility altogether as ridiculous. But we’ve seen Donald Trump, Mitch McConnell, and their allies violate norms quite nakedly over the past few years in the name of maintaining power. And no leading Republican has yet disavowed this scenario.
So that’s my remote, unlikely, but very real concern: that the president and GOP allies are persisting in these “fraud” claims not to prove anything or invalidate results, but to convince state legislatures to do the unthinkable with the Electoral College. Have a nice day.
Edit: writing in The Nation, Elie Mystal walks through how this could happen in more detail and concludes that it’s really unlikely because of the additional steps that state legislatures would have to take “to determine that the voters ‘failed to make a choice’ on which slate of electors to nominate.” They can only determine such a thing if their state hasn’t certified the election result, which all states must do by December 8.
For this gambit to work, legislatures in Pennsylvania and at least two of the other states Biden won would have to submit a slate of Trump electors. The Supreme Court would have to OK this upending of the popular will three times in total. That’s incredibly unlikely and would spark almost immediate civil unrest directed right at the Supreme Court, which has no army to enforce its rulings.
Well, what’s our plan for that?
My dude, I don’t have a plan for “nothing matters anymore.” The end of democratic self-government is not a thing one has a legal plan for. That’s like asking what my plan is for closing a demonic hell mouth that opens in my backyard. Die. My plan would be to die. I’m not Keanu Reeves.