Armchair Lawyers

A Wisconsin GOP state legislator has already endorsed this idea.

"You either have to toss this election out and have a whole new election, or we have our delegates to the Electoral College vote for the person they think legitimately should have won"https://t.co/kCUStGwE7F pic.twitter.com/vky7LI9HIK

— Andrew Prokop (@awprokop) November 11, 2020

"The anger out there in these red states is so deep and palpabale that GOP legislators may have a difficult time seating Biden electors,” Fox News’ John Roberts casually says on air

— Igor Bobic (@igorbobic) November 11, 2020

We're gonna play this out again and again until December 14, aren't we?

Let's go to the tape (as the TeeVee people say):

If Biden’s 288 Electoral College votes include Pennsylvania’s 20, stripping those votes away from Biden would push him below the 270-vote majority threshold. Republicans are preparing to wipe out the likely choice of the Keystone State’s voters by having the Pennsylvania legislature declare that the state’s vote was fraudulent and then designating a slate of 20 electors to support Trump. In the not-that-farfetched scenario we have described, that would put Trump at exactly 270.

The Electoral Count Act

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.

Trump’s Denominator Problem

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.

It's worth noting this analysis posited a sort of "worst case" scenario where Pennsylvania's 20 votes put Biden below the 270 threshold.  Biden currently has 306 electoral votes, a tally unlikely to change.  If he loses PA, he still wins, automatically.  This effort would have to be successful in WI, too, and at the same time, just to get below 270.  The outcome, however, would be the same, with massive damage to the democratic process, and probably more than a few state legislators losing their seats in short order.

People really don't like the fundamentals of their government being messed with.  What, you think the largest voter turnout in 50 years, and the largest total number of votes for one candidate, is because Joe Biden is the second coming of Barack Obama AND Bill Clinton combined with post-assassination JFK's "charisma"? 

Yeah, right.