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As President Trump and his allies float increasingly desperate efforts to keep him in office, he and a growing chorus of Republicans have pushed the idea that GOP lawmakers in key states should reject Joe Biden’s victories and instead give their electoral votes to the president.
But that looks like an increasingly tough proposition both legally and politically.
Trump’s allies have suggested that GOP-controlled legislatures in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin should consider overturning their states’ close wins for Biden and are pushing for Nevada’s results to be rejected as well.
But Biden appears to have won enough states to accumulate 306 electoral votes, plenty of cushion in the Electoral College, where the winner needs 270. Trump would need at least three of those states to flip his way. Federal as well as state laws in all of these states make it difficult—if not impossible—for legislators to override the will of the people. And it’s not like their states’ elections were even that close, making it harder for them to argue that they should back Trump. Trump trails Biden by at least 10,000 votes in every state his campaign is targeting.
“It's legally very dubious to have a legislature overrule the voters, because the rule is under federal law the election has to occur on election day or by election day,” Michael Chertoff, who headed the Department of Homeland Security under President George W. Bush, said during a Friday conference. “It would be political suicide to basically say we're going to take this away from the voters and create some kind of dirty deal to give it to Donald Trump."
While some local GOP lawmakers have made noises about trying to thwart the will of the people and install Electoral College members to back Trump, Republican strategists across those states told VICE News there’s little appetite to trigger what would be a constitutional crisis—and expressed deep skepticism that it would even be legally possible.
"There are a lot of Republicans biting their tongues with the belief that Trump’s temper tantrum will subside in a week or so,” one Pennsylvania Republican close to legislative leadership told VICE News. “We’re in the death throes of idiocracy.”
Republicans in Arizona, Georgia, and Wisconsin privately echoed those sentiments to VICE News in recent days.
Republicans in the states Trump needs are facing immense pressure to follow along with his half-baked plan, however, and many are repeating his complaints about voter fraud, either because they want to avoid his wrath or because they see utility in convincing more voters that widespread voter fraud is real to push restrictive voting laws for future elections.
But any attempts by state legislators to change their state laws are likely to fall flat. Federal law says that states must choose their electors on Election Day, and a bipartisan National Task Force on Election Crises put out a paper arguing that state lawmakers can’t retroactively change the rules of the election, a view that’s held by most experts.
“The legislature’s role ends on Election Day. At that point, the people have chosen the state’s presidential electors, as determined by the popular vote, and under federal law neither the legislature nor anyone else can choose presidential electors after Election Day,” Adav Noti, the head of litigation at the Campaign Legal Center and a member of the task force, told VICE News in an email.
“The Constitution specifically gives Congress, not state legislatures, the power to set the date on which presidential electors are chosen, and this year Congress set that date as November 3; no state legislature has the power to act on any other date,” he added.
The only potentially feasible way that legislators might try to steal the election for Trump is if their states fail to certify election results by their deadlines, which vary by state. That could be read as the state failing to effectively hold an election, the only possible loophole in federal law that’s available for state legislatures. It’s an extremely unlikely occurrence that would have to involve not just one but multiple states failing to certify their results by the December 14 federal deadline for it to make a difference for Trump.
The only likely reason that could happen is if judges side with Trump’s campaign in efforts to stall or prevent certification in multiple states. So far, Team Trump’s legal arguments have been quickly dismissed by judge after judge for lack of evidence. Overturning or blocking a state’s election results would be such an extraordinary step that it’s highly unlikely that any judge would seriously consider it. And even then, Noti said, that wouldn’t be enough to circumvent federal law.
And there’s so little evidence to back up Trump’s claims that even his own administration has declared it “the most secure election in American history.”
“There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised,” the Department of Homeland Security’s Election Infrastructure Government Coordinating Council said in a Thursday evening statement.
That doesn’t mean everything’s hunky-dory. If the election had been closer, Trump’s fight to the death could have been more successful. But he’s behind by so much in so many states that multiple unexpected and legally suspect events would need to happen across multiple separate state elections to give local GOP lawmakers a real chance to legitimize his attacks on democracy—and it’s unlikely any of them would want to if their success wouldn’t actually move Trump much closer to the presidency.
“We dodged a bullet,” said Ned Foley, a professor at the Ohio State University and expert in disputed elections. “If the numbers in the states and the situation in the states had meant instead of there being an obvious Biden victory that just has to work its way through the system, if there had been genuine uncertainty, a Bush v. Gore-like fact pattern, this could have taken a very different turn.”
That won’t stop Trump from yelling that he’s being robbed. But his desperate last-ditch efforts to overturn his loss by getting state legislators to step in look impossible. Here’s why it’s so hard, state by state.
The state may end up being the closest count in the country—Biden’s lead had dipped below 12,000 votes as of Friday, with most votes counted. But even there, Trump’s prospects look bleak.
State law allows for a recount only if the candidates are within one-tenth of a percentage point of one another. And while Arizona still has roughly 10,000 votes left to count, the remaining votes likely won’t shrink Biden’s current lead of three-tenths of a point enough to get within that window, much less let Trump overtake Biden.
Arizona law is also clear as day on certification, leaving little chance for local GOP legislators to stir up trouble, even if they wanted to. Arizona Republicans control both the legislature and the governor’s office, but state law says the secretary of state officially certifies election results and declares that electors “shall cast their electoral college votes for the candidate for president and the candidate for vice president who jointly received the highest number of votes in this state.”
The secretary of state, Democrat Katie Hobbs, has said she’s seen no evidence of any significant election problems.
If Arizona Republicans wanted to have a real chance at swaying the election for Trump, they’d have to change that law. One Arizona GOP source told VICE News that there’s “no appetite” to try—and questioned whether it would be legally tenable for an election that had already passed.
Local GOP leaders in the state have also been less willing to countenance Trump’s baseless voter-fraud claims than some others have been. The state’s Republican governor, Doug Ducey, tweeted on Monday that while Trump had the right to challenge specific issues in court, Ducey and Republicans “will respect the election results” once the courts are done. And Arizona’s Republican attorney general was even blunter on Wednesday.
“It does appear that Joe Biden will win Arizona,” Mark Brnovich said on Fox Business. “There is no evidence, there are no facts that would lead anyone to believe that the election results will change.”
Biden leads by more than 14,000 votes in Georgia, and Republican Secretary of State Brad Raffensperger has been clear that the results are unlikely to change much. But, after immense pressure from other Republicans, he’s ordered a tedious hand recount of the state’s 5 million votes anyway.
While Democrats are a bit concerned about whether the ongoing recount will be completed with accuracy by the state’s November 20 deadline, it likely won’t be a problem by the hard federal deadline of December 14.
Republicans have also lobbed a number of lawsuits in the state seeking to challenge the results, including an effort to toss out the votes from Democratic-heavy counties, though none of those look likely to succeed. Republican Sens. David Perdue and Kelly Loeffler are calling for Raffensperger to resign, without any evidence that he’s done anything wrong, a sign of how desperate they are and what little argument they have to undo the results.
Biden won the state by almost 150,000 votes, a comfortable victory of nearly three percentage points. Nonetheless, Republican state senators have asked for an audit of the results and have begun talking up a potential legal loophole in state law that could let them try to block the state from officially certifying the count.
But even if they take that extraordinary step and try to undo the will of the people, the state has a Democatic governor, secretary of state, and attorney general. The governor will certify Biden’s Electoral College representatives and the federal Electoral Count Act makes it clear that if two competing slates of electors are submitted from a state to the Electoral College, the governor’s picks are the ones that count, making the whole process moot.
Biden’s lead in the state has grown to almost 37,000 votes—a 2.7 percentage-point lead—and while Trump’s team is still trying to sue to undo the results, it doesn’t look like any of those lawsuits will stick.
The state also has a Democratic legislature and governor, and the state’s GOP secretary of state has made no indication that she’d try to do anything to discredit the clear results.
Trump’s campaign filed an injunction in federal court on Thursday to try to delay the state from certifying its vote count, but experts suggest it’s even more frivolous than other cases the campaign has filed in recent days. It’s also unclear whether it will go anywhere or fall apart like so many other Trump campaign court cases.
If Pennsylvania’s results are within a half percentage point, that would have led to a recount. But Biden leads by almost double that margin—more than 64,000 votes—and Democratic Pennsylvania Secretary of State Kathy Boockvar's office announced Friday that it wasn't close enough to trigger a recount.
Pennsylvania statehouse Republicans have launched a committee to explore accusations of voter fraud. But Pennsylvania’s Republican Senate majority leader, Jake Corman, has been clear since before the election that the legislature can’t and won’t overturn the election results, barring any major signs that the entire election is fraudulent.
Sources in the state say he and other Republicans have no appetite for undertaking such an obviously ludicrous challenge to their state’s election results.
Biden’s lead in Wisconsin is just over 20,000 votes and within one percentage point. Under state law, that gives Trump the right to a recount. But it’s unlikely to change the results.
Under state law, the bipartisan Wisconsin Elections Commission is the organization that certifies those results. That body has made it clear that it’s seen no evidence of fraud and plans to certify the results when they’re finalized.
“At the end of the process, there’s a state canvas and the possibility for a recount,” said Jeff Mandell, a Democratic Wisconsin-based election attorney. “And we should allow that process to play out. It is the result of the state canvas that determines the electors. That is clear as day under state law. And I expect that things are going to go as they would under normal order.”
Still, some powerful local Republicans have begun floating the possibility of undoing the election.
“If an investigation shows these actions affected the outcome of the election, we need to either declare this past election null and void and hold a new election or require our Electoral College delegates to correct the injustice with their votes,” Wisconsin state Rep. Joe Sanfelippo, who was recently appointed to the GOP’s newly created voter fraud investigation panel, said in a statement earlier this week.
Local conservative radio hosts have been following Fox News’ lead in harping about supposed voter fraud. And though their claims are false or unproven, that’s creating additional pressure on local Republicans to at least pay lip service to the accusations of fraud. But that doesn’t mean they’ll actually go along with it.
"Talk radio is out for blood and wants to find everyone who committed voter fraud,” one Wisconsin Republican close to state lawmakers told VICE News. “The base needs something.”
"I don’t think it’s being taken seriously by assembly and Senate leadership, but when you have 60-plus representatives, a few of them are a little nutty,” they added.
And it’s notable that even as Trump’s campaign has filed multiple flimsy court cases in other states alleging voter fraud, they have yet to file a single case in Wisconsin. Democrats are worried that means they’ll do it at the last minute to try to delay or gum up the state’s certification of results, but Republicans privately tell VICE News it just signals that they simply don’t have much to argue.