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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."

Go deeper

Georgia election official to Trump: Condemn “potential acts of violence”

Gabriel Sterling. Photo: Jessica McGowan via Getty

Gabriel Sterling, Georgia’s voting implementation manager, called on President Trump and the state's Republican senators to denounce threats against election workers in a press conference on Tuesday.

Why it matters: State election workers have been the recipients of death threats after conspiracy theorists shared false videos about the election results on social media. Trump and his allies continue to claim widespread election fraud took place in the state.

19 hours ago - World

Biden says he won't immediately remove U.S. tariffs on China

President-elect Joe Biden during an event in Wilmington, Delaware, on Tuesday. Photo: Alex Wong/Getty Images

President Trump's 25% tariffs imposed on China under the phase one trade deal will remain in place at the start of the new administration, President-elect Biden said in an interview with the New York Times published early Wednesday.

Details: "I'm not going to make any immediate moves, and the same applies to the tariffs," Biden said. He plans to conduct a full review of the current U.S. policy on China and speak with key allies in Asia and Europe to "develop a coherent strategy," he said.

Chris Krebs hints at legal action against Trump campaign lawyer who suggested he be 'shot'

Former CISA director Chris Krebs is hinting at legal action against Trump campaign lawyer Joe DiGenova, who suggested Krebs should be "taken out at dawn and shot."

Driving the news: Krebs, who led efforts on election cybersecurity, was fired last month by President Trump following the 2020 elections. The former director has since spoken out against baseless claims from the president and the Trump campaign that elections systems were rigged in favor of now President-elect Joe Biden.