Nov 11, 2020 - Politics & Policy

The Electoral College play

A Trump supporter raises an American flag
Trump supporter Dana Benson hangs a U.S. flag while demonstrating outside of a vote counting facility in Philadelphia. Photo: Mark Makela/Getty Images

As the weaknesses of President Trump's legal cases to overturn Joe Biden's win become clearer, Republicans are talking more about the Electoral College — hinting at an extreme last-chance way for Trump to cling to power.

What we're watching: In this long-shot scenario, Trump and his team could try to block secretaries of state in contested states from certifying results. That could allow legislatures in those states to try to appoint new electors who favor Trump over Biden.

  • "It's basically hijacking the democracy," one lawyer familiar with the process tells Axios. "They've got nothing else; you'd be trying to deny Joe Biden 270."
  • If Trump were to pursue this course, it likely would become apparent the week leading up to Thanksgiving, as states face deadlines to finalize election results.

Between the lines: Trump has not directly said he would pursue this strategy. But Senate Majority Leader Mitch McConnell and Secretary of State Mike Pompeo each noted on Tuesday that the election results don't become official until electors cast their votes next month.

  • To date, Biden's status as president-elect is rooted in media projections based on raw vote totals reported by individual states.
  • Those totals don't become official, though, until states certify them. The Constitution prescribes that those official results will be used to apportion electors who officially pick the president.
  • “At some point here, we’ll find out finally who was certified (the winner) in each of these states, and the Electoral College will determine the winner and that person will be sworn in on January 20," McConnell said. "No reason for alarm.”
  • One Senate leadership aide said McConnell was not signaling an elector strategy and was simply noting that it's not uncommon for there to be litigation before the Electoral College results are complete.
  • Pompeo, who raised eyebrows with a line about how there would be a "smooth transition to a second Trump administration," independently raised the Electoral College during a State Department news conference. “When the process is complete, there’s going to be electors selected," he said. "There’s a process; the Constitution lays it out pretty clearly.”
  • The Trump campaign did not respond to requests for comment.

How it works: If a lawsuit successfully stops certification of results in a state, legislators there could step into the void and pick a pro-Trump slate of electors.

  • The lawyer, who requested anonymity to speak about the scenario, said Trump's team now appears to be trying to throw enough dirt at the process for counting late ballots to argue that accurate results can't be ascertained.
  • The next step could be to try to get federal or state courts to enjoin secretaries of state from certifying results.
  • Any move to provide an alternative slate of electors could force the first real test of the Electoral Count Act of 1887 and could land before the Supreme Court.
  • Among the key swing states, Arizona and Georgia have GOP governors and legislatures. Michigan, Pennsylvania and Wisconsin have Democratic governors but GOP legislatures.

"This is a horrible idea, one that should be morally repugnant to every American," elections law expert Edward B. Foley wrote recently in The Washington Post.

  • "For a state legislature to reclaim this power after voters have already cast their own ballots would be an even more egregious intrusion into the democratic process."

But, but, but: Even if the GOP was able to get injunctions, it would be an arduous legal process before legislatures could take the matter into their own hands.

  • "How many compliant judges are going to throw themselves on the ground in front of that train?" the lawyer said. "And how many legislatures are going to go along with it?" Instead, he said, Trump may try to "scare the living bejeezus out of everyone to gain leverage and then cut a deal for him and his family."
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