- GOP figures have been pushing a desperate last-ditch plan to subvert the election and secure President Donald Trump another term.
- Under the plan, state officials would be prevented from certifying a Biden win. GOP legislators would then, in defiance of the vote, send pro-Trump electors to the Electoral College.
- States on paper have the ability to do this, but would face a huge number of obstacles in doing so. Experts believe that the plan is doomed to fail.
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With Trump's chances of successfully challenging the election result looking increasingly remote, allies of the president are talking up a wild, last-ditch attempt to ensure the president retains power.
The plot, which seeks to exploit an obscure loophole in American democracy, was spelled out by Mark Levin, a key media ally of Trump, in a tweet on November 5 that was labelled as misleading by the platform.
"REMINDER TO THE REPUBLICAN STATE LEGISLATURES, YOU HAVE THE FINAL SAY OVER THE CHOOSING OF ELECTORS," he wrote.
It was a reference to the fact that votes in the US presidential election do not translate directly into votes in the electoral college, but via 538 human electors.
In some states, the electors are technically free to vote for whoever they want — though so-called "faithless electors" have only ever broken ranks a handful of times, and never in a way that would change the outcome.
Under the plan, secretaries of state in states for Biden-supporting states would block state officials from certifying election results. GOP state legislatures would then be free, advocates argue, to step into the void and appoint new officials to the Electoral College, who could ignore the results and support Trump.
Legal experts have been clear that the plan, though not explicitly banned under US law, has little chance of success.
Nonetheless, the idea has gained some currency among Trump allies, and was touted on Wednesday night on Fox News by White House correspondent John Roberts.
Reporting on groundless allegations of widespread voter fraud pushed by the president and his allies, he remarked, "the anger out there in these red states is so deep and palpable that GOP legislators may have a difficult time seating Biden electors."
And in a Fox News interview with Levin shared by Trump in a tweet on November 9, attorney Ken Starr defended the view that state legislators have the right to pick electors.
In an article in September that caused shockwaves, The Atlantic reported that it was one of a number of post-election scenarios being wargamed by Trump allies in state legislatures.
But any attempt would faces enormous obstacles, legal and political. Here are some:
- The process relies on the Trump campaign or GOP in lawsuits successfully blocking the certification of election results in several swing states. "How many compliant judges are going to throw themselves on the ground in front of that train?" asked attorney, speaking to Axios anonymously, said. "And how many legislatures are going to go along with it?"
- It relies, too, on the presence of a loyal state legislature, which could appoint its own electors in defiance of the choice of voters. At the time of writing, Trump needed another 38 electoral votes to hit the 270 required for victory.
- If the GOP looked to Pennsylvania, with its 20 votes, they would likely be disappointed. State attorney general Josh Shapiro in a statement said "there is no legal mechanism… to act alone and appoint electors. None." The state's GOP leaders have ruled it out as a possibility.
- In Wisconsin, with 10 votes, the state GOP has also dismissed the possibility.
- Arizona has a GOP governor and legislature. But according to the FairVote nonprofit, Arizona has a state law which automatically cancels the votes of electors who rebel.
- Michigan has a GOP legislature (but a Democratic governor) — but also has a law cancelling "faithless" elector votes.
- The Supreme Court in July upheld a law passed by 32 states, including Arizona, Michigan and Wisconsin, making it illegal for "faithless" electors to switch votes. But there is ambiguity regarding whether this would apply to pro-Trump electors chosen by a state legislature to replace the original electors.
- In Georgia, not called but leaning towards Biden at the time of writing, there is a GOP legislature and governor, and no law explicitly outlawing the practice described in the plan. But its 16 votes are too few to be decisive.
- According to a Lawfare blog by Lawrence Lessig and Jason Harrow, even if legislators did make an attempt it would likely be struck down by the Supreme Court.
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- Rick Hasen, a professor in law at UC Irvine, in a tweet in September noted that states with Democratic governors — like Michigan and Wisconsin — could also veto attempts by GOP-controlled legislatures. "Some states have Dem governors who would reject the move. There's a dispute what role governors play here, but better argument is they can veto,"he wrote.
- It's a move that would likely result in a mass demonstrations, and would upend more than two centuries of US democratic tradition.
Like Trump's attempts to overturn election results in a slew of lawsuits in swing states, it seems that it's a gambit that is doomed to fail.
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