How Long, O Lord?

“But Republicans don’t even have to win Pennsylvania; all they have to do is stall.

“If the vote is not certified by December 8th, the Republican-controlled legislature could appoint electors, who would likely cast their votes for Trump.” https://t.co/UepjPWCI2A

— Jonathan Lemire (@JonLemire) October 29, 2020

Again: no.

However, Pennsylvania’s governor is a Democrat who would veto any effort to circumvent existing state election law. Supreme Court precedent makes clear that Republican-dominated legislatures cannot legally bypass their own governors to change the rules governing federal elections, as two of the authors of this column and a colleague recently demonstrated. If Pennsylvania or any other state wants to change its voting laws, it must do so in the normal way, not by having the legislature go rogue. If Biden wins more votes in Pennsylvania, Governor Tom Wolf would certify the Biden electors to the Electoral College.

What if the Republican majority in the Pennsylvania legislature purported to designate the Trump electors anyway? There would then be two competing slates of electors from Pennsylvania: the governor’s slate based on Biden’s popular-vote win in the Keystone State; and the rogue state legislature’s slate based on its unlawful endorsement of Trump’s contrived claims of voter fraud. What then?

A federal statute, the Electoral Count Act, specifies that Congress settles disputes over electors, but that would lead to a stalemate, as the Republican-dominated Senate and the Democratic-dominated House would likely disagree on which Pennsylvania slate to recognize (unless, of course, the Democrats win back control of the Senate in this year’s elections, given that all of this would be determined by the Congress that is sworn in on January 3, 2021). The Electoral Count Act addresses this contingency as well. It says unequivocally that “the votes of the electors whose appointment shall have been certified by the executive of the State” are the ones that count. Thus, a partisan dispute arising out of competing slates of electors from Pennsylvania—or Michigan, Wisconsin, or North Carolina, which also have Democratic governors—would be resolved in favor of the Democratic governor’s choice. Biden wins.

Team Trump cannot be expected to give up, however. Perhaps they would next claim that the Electoral Count Act is unconstitutional in specifying a procedure that has details going beyond what appears in Article II or the Twelfth Amendment. Making this claim would be the height of hypocrisy, of course, because the Supreme Court relied on Florida’s supposed wish to comply with the Electoral Count Act as the basis for its December 2000 ruling to stop the counting of ballots in the Sunshine State and hand the presidency to Republican George W. Bush. But as we have seen in the GOP rush to fill the Supreme Court vacancy created by Justice Ruth Bader Ginsburg’s death, hypocrisy is the party’s brand.

Accordingly, we can expect the Trump team to argue that with Pennsylvania’s ballots in dispute, the presidential selection falls to the House of Representatives. And even though Democrats hold a clear majority in the House, the Twelfth Amendment specifies that in resolving presidential contests, each state delegation gets only one vote; so absent a shift due to the coming election—a shift that Speaker Pelosi and the Democrats are working hard to achieve but obviously cannot guarantee—Republicans would have the edge.

And as long as we're wildly speculating, we come back to this map:

The @NBCNews battleground map has moved Texas and Arizona to the tossup column with one week to go until Election Day.

“They’re going to be extraordinarily close,” @chucktodd says. https://t.co/MEbEeGtK27

— MSNBC (@MSNBC) October 27, 2020

Which is as sound a piece of speculation as any.  Let's say Trump picks up Pennsylvania through this gambit.  But Biden carries Texas, which means he has a net gain over the number in that speculation, of 18 electoral votes.  Biden wins.  In fact, Biden has to lose every battleground state on that map AND Pennsylvania, to make Trump win.  And unless that can happen, there's no point in the Pennsylvania legislature monkeying with the electoral college slate.*  Nor is it feasible that the legislatures of Wisconsin, North Carolina, and Michigan would suddenly decide to follow Pennsylvania's example and select electors pledged to Trump despite the outcome of the popular vote in their states.  A)  would they really be so loyal to Trump they'd slit their own political throats?  B) all four of these states have Democratic governors who would veto these changes, and even if the vetos are overriden in all four states, you still have to clear the plain language of the Electoral Count Act.  C) if the vote in each state is overwhelmingly for Biden, does anybody see this happening?  In one state, much less all four?  The very legitimacy of the governing system, from the statehouse to the White House, would be imperiled?  For Trump?

Don't make me laugh.

Oh, and if the Supremes get involved and get behind Kavanaugh (well, if 5 of them do, at least) and decide the legislature is supreme because of Art. II, and the Electoral Count Act is therefore to be set aside on this occasion, there's still the 12th Amendment to get around:

But Republicans cannot have their cake and eat it too. They cannot plausibly argue that the Twelfth Amendment’s silences override the Electoral Count Act while ignoring the Amendment’s plain language. If neither slate of Pennsylvania’s electors is recognized, Biden’s 268 votes would fall short of a majority of the 538 total Electoral votes theoretically available. However, the Twelfth Amendment does not say anything about those votes. Instead, it says that “[t]he person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed” (emphasis added).

We have italicized that last word—appointed—to emphasize that the Constitution does not say that a candidate must win a majority of the potential number of theoretically eligible electors who might have been appointed. He or she must win only a majority of the electors who were actually appointed. In the scenario in which the Electoral Count Act is set aside so that Pennsylvania’s votes do not count, its 20 votes are subtracted from both the numerator and the denominator. Now Biden’s (assumed) 268 votes would be a majority of the 518 votes cast by the “whole number of electors appointed.” Biden would win in the Electoral College, meaning that the decision would not go to the House.

The Supreme Court can't get involved in the election to the extent of choosing one slate of electors over another (just as they didn't choose the outcome of the recount in Florida in 2000; they merely stopped it, which had the same effect, but didn't involve the Court in actually declaring the outcome).  A challenge to the electors from PA, if two slates were sent to the electoral college, would end with neither slate being appointed.

Exhausting, isn't it?  "Nightmare scenarios" like this are why people are voting in record numbers.  The near-fanatical support for Trump is going to evaporate as the vote counts tally up.

*Yes, per the New Yorker article, the Florida legislature contemplated passing a law declaring a slate of electors loyal to Bush the ones to go to the electoral college.  But the whole race turned on the outcome in Florida.  Change the facts, change the outcome.  And politicians can count:  unless Trump picks up every battleground state on that map AND the electoral college comes down to one state willing to upend the entire electoral process for the sake of Donald Trump (how many Senators or Representatives are going to cheer that on?), especially if the vote is not close?