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Lawyers Forecast the Road Ahead as Trump and His Allies Sow Electoral Chaos and Confusion

President Donald Trump speaks during a campaign rally on October 27, 2020 in Omaha, Nebraska.

Some supporters of President Donald Trump believe they’ve finally found the magic solution to washing away Joe Biden’s insurmountable electoral college lead: Republican state legislatures willing to buck the will of the voters in their own states and send pro-Trump electors to choose the next president.

The idea began to gain traction two days after Election Day when right-wing radio host Mark Levin sent an all-caps tweet telling Republican state legislatures that they have “THE FINAL SAY OVER THE CHOOSING OF ELECTORS.” The post was quickly retweeted by Donald Trump Jr. and the conservative media machine began amplifying the notion far and wide across the usual channels.

As Law&Crime previously reported, Pennsylvania State Sen. Jake Corman, who leads the GOP caucus in the Keystone State’s upper chamber, appeared to throw cold covfefe on that idea earlier this year. In recent days, however, Corman has expressed openness to having the Republican-dominated legislature step in and assert control over the process due to the “circumstances” of the election.

And the de facto conservative commentariat is catching on, too.

“The anger out there in these red states is so deep and palpable that GOP legislators may have a difficult time seating Biden electors,” Fox News correspondent John Roberts said on Wednesday–reflecting the increasingly popular strategy among the 45th president’s diehards.

“That would be something,” anchor Bill Hemmer said in response.

An understatement for the ages, or at least apropos of the coming year and ongoing GOP attempts to foment election-related chaos, legal experts quickly moved to rein in that line of thought.

“If they’re ‘red states,’ then they won’t be seating Biden electors, except Nebraska which will have one,” tweeted New York City-based attorney and author Luppe B. Luppen. “Also the legislators have already passed the operative laws, so they don’t have to take further action; state officials certify election results according to state law.”

University of California, Irvine Professor of Law and Political Science Richard Hasen also disputed the basic concept.

“GOP legislators do not ‘seat’ electors at all,” he tweeted.

The Luppen-Hasen dismissal is the overall consensus view here–though there are a few catches–but pursuing some permutation of that strategy isn’t as far-fetched as it might sound at first blush.

“[S]tate legislatures have already exercised their power of appointment by deciding to allocate electors through an election and there really is no role for them after that – but there are a few possible exceptions (some of which are not relevant here),” University of Southern California Gould School of Law Professor Franita Tolson said in an email.

The operative and overarching issues here are the president’s deluge of lawsuits aimed at states he needs to win and how long Trump and the GOP can maintain the momentum of their largely false charges.

“A strategy would be to start litigation, open disputes and keep them open past December 8–which is the safe harbor date by which election results must be finally settled for Congress to presume those results are valid,” Tulane Law Professor Ross Garber said in an interview. “Super ideally for the Trump team would be to keep disputes going until December 14 when the members of the electoral college meet. And if possible, keep those disputes going until January 6 when Congress gets involved. What their strategy would be is to have Congress ultimately decide the result of the election.”

Key here is understanding that state legislatures absolutely cannot invalidate each state’s election and determine a new way for selecting electors. There’s simply no formal mechanism for any legislature overturning the election results in such fashion.

Distinct from that, however, is that state legislatures actually can submit their own slate of electors in addition to those previously-determined by long-ago-passed laws–and, presumably, Republican state legislatures would base their new slate creation efforts on their belief that Trump actually won their states despite the vote totals. This is almost what happened amidst Bush v. Gore, so there’s at least some argument for recent precedent on the matter.

Hasen, for his part, doesn’t believe such efforts are likely to succeed and he laid out his reasoning in a piece for The Atlantic using a timely sports metaphor on Wednesday. Garber previously gamed out the situation if America is still mired in vapor-lock-like electoral confusion.

Noting that Luppen’s explanation of the situation was “accurate for the most part,” Tolson went on to note how things might play out should the disputes and confusion continue along such lines:

[T]he larger question remains – what happens if the election results are not certified? If a state is unable to resolve these election disputes, the state legislature is empowered under federal law to appoint its own slate due to the voters’ “failure to elect” a slate on Election Day. In this scenario, you could conceivably have two possibilities arise. First is that the state legislature sends its slate, Congress counts it, end of the story. But the more likely second scenario is that the state legislature attempts to send a slate even if election results are certified, based on their belief that the election was fraudulent and filled with irregularities. This second scenario would result in two slates being sent to Congress.

“When two competing slates of electors go to Congress, each House would have to agree on which slate is the appropriate slate,” Tolson continued. “If Congress deadlocks (possible if the GOP holds the Senate), federal law provides that the executive of each state would then decide which slate is the appropriate slate.”

The Congressional Research Service within the Library of Congress has an extensive explanatory paper on a two-slate situation here.

Garber also noted that there was a separate option potentially available for GOP-controlled state legislatures should the Trump campaign successfully navigate the harsh and cramped legal terrain they currently face and successfully stall things out past the key dates described above: they can engineer a report that is then sent to Congress laying out the reasons they believe the vote-influenced electoral college slate should not qualify.

There is also at least one additional–and not entirely novel–avenue for legal logjamming should Trump and his allies cling to their belief and strategy aimed at maximum disorder and disarray. Garber noted that the Electoral Count Act itself could be open to legal challenges due to the contested circumstances of the 1876 presidential election–which immediately led to the passage of act. See more on that theory here.

Its unclear what the U.S. Congress, or Supreme Court for that matter, would make of such a document. But if the thrust of political power is still moving at the speed necessary for those circumstances to even fully unfold in the first place, it’s easy enough to imagine what the Trump campaign, White House and their erstwhile supporters would make of their extraordinary claims being formalized and legitimized.

Some say the United States of America is in the throes of a coup d’etat due to the president’s unlikely legal strategy. Others have opined that such rhetoric is inappropriate for various reasons. All of it could be avoided with a concession.

[image via Steve Pope/Getty Images]

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