Could GOP states ignore voters and send Trump delegates to the Electoral College?

The votes have been cast. The counting is almost done. Now, the group in charge of the final step of the presidential election is about to take the stage: the Electoral College.

Normally, the Electoral College does its business performing the will of state voters in relative obscurity. But there is more scrutiny on the process this year because President Donald Trump and his allies have refused to concede the 2020 election. Critically, Trump allies urge going a step further, floating the idea that Republican-controlled state legislatures should ignore the vote for President-elect Joe Biden in their states and send Trump's slate of electors to the Electoral College instead.

But their theory vaguely waves away how the Electoral College actually works in practice, which stems from the Constitution, as well as from state and federal laws putting the constitutional text about the electors into practice.

“Just on the legal side, there’s pretty much impossible-to-overcome obstacles to" the idea of legislators overriding voters, said Adav Noti, chief of staff at the Campaign Legal Center and a member of the National Task Force on Election Crises.

Here’s how the Electoral College really works, from the certification of the election results to the electors casting their votes for president and vice president.

The Constitution sets the numbers, and the states decide how the electors are chosen

The number of electors for each state is established in Article II of the Constitution, which describes the presidency, its powers and the way presidents are elected. Every state gets a number of electors equal to the size of its congressional delegation (representatives in the House plus two senators). That number changes every 10 years based on reapportionment of House seats following the census, but heading into each presidential election, the number of electors per state is fixed.

From there, the Constitution leaves things up to the states: “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” But across every state, those legislatures have all established a similar process.

The political parties in each state pick a slate of potential electors for the Electoral College, and the winner of the popular vote in that state gets the electors. Maine and Nebraska award single electoral votes to the winner of each congressional district and then give two more to the statewide popular vote winner, but the same process applies.

The crucial step before appointing electors: Certifying the election

Along with tethering the Electoral College vote to the state popular vote, state legislatures have passed laws setting up how elections are administered, delegating authority to other state and local officials to handle everything from voter registration to certifying the official election results at the end of the vote count.

In Wisconsin, for example, local county boards finished up their canvassing of results on Tuesday. The state election commission has until Dec. 1 to certify the results, even if there is a recount (which the Trump campaign has requested), with no formal role for the state legislature.

In Michigan, a board of state canvassers certifies the results. It is set to meet on Nov. 23.

Then, the federal Electoral Count Act requires that state governors — not legislators — prepare a “certificate of ascertainment” that identifies the electors from each state.

Various lawsuits filed by the Trump campaign and its allies in states like Pennsylvania and Michigan have tried to halt the certification process. But there is near-universal agreement among legal experts that these cases are unlikely to succeed.

States have already chosen how to appoint electors ahead of Nov. 3

Having delegated the power to choose electors to voters in their states and having passed laws setting that process out for the 2020 election, legislators can’t just take it back without changing state law. Among other things, Democratic governors would also stand in the way in states like Michigan, Pennsylvania and Wisconsin.

But there are other obstacles. The Campaign Legal Center’s Noti says that proponents of the “rogue legislature” theory for putting Trump back in the White House have also already run out of time.

They are ignoring a key clause of the Constitution, Noti says, which gives Congress the ability to dictate “the Time of chusing the Electors, and the Day on which they shall give their Votes.”

“What people are saying is, ‘Well, we can determine to appoint electors ourselves.’ Which is true, if that had been the determination they made for the 2020 election,” Noti said. “But every state in the nation, as they have for more than a century, has made a different determination, which is to appoint electors by popular vote. And that’s what the legislature decided, and that is what, in fact, happened on Election Day.”

In effect, Noti said, states are bound by election laws they have previously passed. Congress “set the time of appointment as Nov. 3,” he continued. “So the legislative power to determine the method of appointment lasted until Nov. 3.”

New York University law professor Richard Pildes told POLITICO Magazine the true goal of the lawsuits isn’t to change vote counts but to “shape a ‘lost cause’ narrative" that could embolden GOP state legislators to “claim the authority to appoint electors themselves.” That would hinge, in part, on a generous reading of the U.S. Code on states that "fail" to make an election selection.

But, Pildes noted, “No state legislature has ever done that since the law governing the Electoral College process was passed in 1887, and even if one or more did that this year, there are further steps in the process that would block those actions from having any effect on the outcome.”

Individual electors have gone rogue in the past, but states have tightened the rules

Electors will meet in their states on Dec. 14 to cast their votes, and Congress meets for a joint session on Jan. 6, 2021 to count those votes.

Another key date to watch: Dec. 8, which is the "safe harbor deadline" for electoral college slates. If a state makes the "final determination" of its electoral college electors by that date, it "must be treated as 'conclusive' by Congress," a paper from the National Task Force on Election Crises reads. In other words: It's already unlikely and difficult to challenge the legitimacy of electors in Congress. This makes it even harder.

But what's preventing individual electors from voting how they please, once they are appointed? There are two major barriers: A number of states have laws that punish or prohibit electors from voting against the candidate they pledged to back, and many of the electors put up by state parties are hardcore party loyalists.

In 2016, seven electors ultimately broke their pledge to vote for who they said they would support. Five electors voted for someone other than Hillary Clinton despite Clinton carrying their states, while two abandoned Trump. Their decisions ultimately did not change the results of the election — Trump's Electoral College margin, which is identical to Biden's projected margin this year, gave him plenty of cushion — but the experience made both major parties tighten their grasp on the selection process this year, to make sure only loyalists would be selected. For example: Clinton herself is slated to be a New York elector for Biden.

Meanwhile, just this year, the Supreme Court upheld state laws binding electors to stick with their pledged candidate, making defections even less likely.

“Every four years, millions of Americans cast a ballot for a presidential candidate. Their votes, though, actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns,” Supreme Court Justice Elena Kagan wrote in an opinion earlier this year over so-called “faithless electors.” The court ruled that laws that remove or otherwise punish electors who break with pledges on whom to support are legal.

Now, the lawyers who argued that electors couldn’t be restrained say there is no legal basis for legislatures going rogue and appointing their own electors contrary to the state popular vote. Harvard Law professor Lawrence Lessig and Jason Harrow recently wrote on Lawfare that their own loss at the Supreme Court undercuts the possibility of a rogue legislature appointing its own slate.

“If the electors have lost their superpowers to an emerging democratic consensus, then legislatures must have lost them as well,” Lessig and Harrow wrote. “It would be a complete perversion of the Framers’ design to remove the constitutional discretion of electors but accept a constitutionally unconstrained power in the state legislatures.”

Legal questions aside, GOP political appetite to try an end-run around voters appears low

Even setting aside the significant legal barriers, many election experts have expressed doubt that Republican-controlled state legislatures would go along with any plan to subvert the results of the presidential vote in their states. Even amid intense pressure from some in the GOP, key Republicans in the most important battleground states have not bought into the idea.

In Pennsylvania, Jake Corman, the majority leader of the GOP-run state Senate, wrote in an October op-ed that the General Assembly “does not have and will not have a hand in choosing the state’s presidential electors.” And while some lawmakers have called for an “audit” in the state, it was only a small cadre and not anywhere near a majority of the legislature.

Sen. Pat Toomey (R-Pa.), the highest-ranking Republican elected official in the state, has also rejected the idea that the legislature could step in at the last moment. “The Pennsylvania legislature has already exercised it’s responsibility for determining how electors are selected. They’re selected by the outcome of the vote,” Toomey told The Washington Post. "The legislature is not going to try to do an end-run around this vote and try to put forth some alternative slate.”

In Michigan, another state that’s been the focus of the Trump campaign and its allies' baseless claims of fraud, both Republican legislative leaders have rejected that premise.

Michigan state Senate Majority Leader Mike Shirkey, a Republican, rejected the premise outright on Tuesday. He told Bridge Michigan “that’s not going to happen” when talking about the possibility of the legislature selecting electors. State House Speaker Lee Chatfield, also a Republican, has shot down the idea as well.

Despite all this, election experts are still worried about the talk of legislatures going rogue between Election Day and the selection of Electoral College electors. Their biggest fear is that the discussion causes long-term erosion of trust in the electoral system.

“We can keep going down these rabbit holes, and though surely there are some very dark possibilities, none of them is likely,” Rick Hasen, a prominent election law professor at the University of California, Irvine, wrote in The Atlantic. “The danger, then, is less about whether Biden takes office in January and more about whether the American people will keep believing that this is a country that can settle its disagreements peacefully and through a legal process.”