Reports suggest strategy to bypass results in key states under discussion, but legal experts say such an effort is likely to fail
Trump at the White House on Thursday. The US constitution gives state legislatures the authority to appoint the 538 electors to the electoral college who ultimately elect the president.
Photograph: Erin Scott/EPA
Donald Trump escalated his efforts to undermine the 2020 election this week.
Republicans are reportedly considering the possibility of asking state legislatures to ignore the will of the popular vote and appoint electors favorable to the president. Trump also declined to say whether he would accept a peaceful transfer of power this week, comments that many Republicans distanced themselves from. Trump said he needs to place a new supreme court justice in place to resolve election disputes.
The US constitution gives state legislatures the authority to appoint the 538 electors to the electoral college who ultimately elect the president. States have long used the winner of the popular vote to determine who gets the electoral votes in their states, but Republicans anonymously told the Atlantic the campaign has discussed the possibility of using delays in the vote count as a basis to ask Republican-controlled legislatures to appoint their own electors, regardless of the final vote tally.
“The state legislatures will say, ‘All right, we’ve been given this constitutional power. We don’t think the results of our own state are accurate, so here’s our slate of electors that we think properly reflect the results of our state,’ ” a Trump campaign legal adviser told the Atlantic.
A Trump campaign spokesperson said the report in the Atlantic was not true.
“The Atlantic story is false and ridiculous. The types of contingency plans included in the story are impossible,” the spokesperson said. “States have laws that determine how electors are selected. Especially if we’re looking at states that could have mail ballot problems (eg Pennsylvania, Michigan), no Democrat governor is going to sign a bill repealing those laws.”
Experts cast doubt on the feasibility of such an effort.
“It’s the ultimate nightmare scenario for the country. There’s no reason to think there would be any appropriate basis for doing this. It’s not at all clear that the legal power to do it even exists,” said Richard Pildes, a law professor at New York University. “There’s a delicate line in talking about and educating people about all sorts of potential scenarios that could emerge and creating unwarranted anxiety about what is likely to be a relatively well-functioning election process.”
Such a scenario is unlikely, Richard Hasen, a law professor and election expert at the University of California, Irvine tweeted Thursday. He noted he did not see a way in which lawmakers could legally change the manner in which they chose electors after people started voting. Several battleground states, including Michigan, Pennsylvania, and Wisconsin, also Democratic governors who could serve as a check on the legislature.
It’s also not clear how widespread or serious the Republican effort is. Joseph Kyzer, a spokesman for North Carolina speaker Tim Moore, said it wasn’t something being discussed among lawmakers. Andrew Hitt, the chairman of the Wisconsin Republican party, also told the Milwaukee Journal-Sentinel Wednesday it wasn’t something that was being discussed.
Because of a surge in mail-in balloting, election officials are likely to continue counting votes after the polls close on 3 November. There’s nothing unusual about that kind of delay, but experts are increasingly worried Trump could use it to claim victory if vote tallies show him ahead on election night. There is a push to prepare the public to understand such a wait is normal to gird against claims of fraud.
“Unnecessarily sowing doubt and confusion in voters mind can alienate some voters from even participating at all and can fuel anxieties that put people on a razor’s edge,” Pildes said.
