The attorney general of Pennsylvania, Josh Shapiro, has shot down this idea. In a statement, he flatly noted that “there is no legal mechanism” for the state legislature “to act alone and appoint electors. None.”
That sounds pretty definitive. For a fuller picture, I reached out to Shapiro’s office. And they walked me through the legal reasons that scenario is preposterously far-fetched.
First, note that GOP state legislators themselves have recently been saying that they have no role in this process. And it’s true: By state law, they do not.
As Shapiro’s office explained to me, the relevant state law assigns the role of certifying the final statewide vote count to the Secretary of State, who is a Democrat. And it assigns the role of certifying the electors chosen by that statewide vote count to the governor, who is also a Democrat.
To oversimplify, the state legislature played its role in all this long ago when it passed the law designating this process as the “manner” by which the electors are chosen. The Constitution assigns to each state the authority to “appoint” its electors in a “manner” that the legislature “may direct.”
In all states, legislatures have “directed” that electors are appointed in accordance with the popular vote by passing laws to that effect.
And in Pennsylvania, the state legislature, by passing its law, has already assigned the role of certifying the electors to the governor.
That’s what Shapiro — and GOP state legislators themselves — mean when they say the state legislature has no role in acting alone and appointing electors at this point. It doesn’t.
So far so good, right?
Well, as Andrew Prokop notes, those state legislators have been hedging a bit on this lately, because they’re under heavy pressure that will surely ratchet up once Trump loses more rounds in court.
So what would happen if the state legislature did decide to send in its own slate of electors?
It’s important to note just how rogue this would be. It would be in defiance of not just the will of the voters, but also of its own law designating the governor as the party who certifies the electors on the basis of the popular vote.
This alone is highly unlikely at best, especially with the very clear popular vote outcome we saw there. And if they did do this, it probably wouldn’t stand up in court.
But let’s say that it did hold up in court. What would happen in essence is that two separate slates of electors would arrive in Congress, one for President-elect Joe Biden (certified by the governor, in accordance with the state’s popular vote outcome) and one for Trump (certified by the state legislature and not in accordance with the popular vote).
At that point, each chamber of Congress would deliberate over the two slates of electoral votes. It’s possible, as Edward Foley notes, that the Senate actually could end up picking the Biden slate if just a handful of GOP senators who have already declared Biden the winner joined Democrats in doing so. That would give it to Biden.
But let’s say the Senate picked the Trump slate, and the Democratic House picked the Biden slate. There’s one reading of federal law that holds that the slate picked by the governor is the operative one in such a situation. That, too, would give it to Biden.
However, there’s still another reading of federal law that holds that in this scenario, both slates would get tossed out.
The two chambers would probably deadlock over which interpretation is right, with the House picking the first and the Senate the second. But even if the House relented and allowed the second interpretation, neither Trump nor Biden would get Pennsylvania’s 20 electoral votes. Biden still wins, because he’d still have 270 electoral votes anyway, with just Nevada and Arizona, and well over 270 if he holds Georgia, as expected.
For Trump to win in this scenario, numerous states with GOP legislatures would all have to do this extraordinarily rogue act, enough of them to pull Biden down below 270 electoral college votes (this would kick the election in a different sense over to the House, where the relative number of state delegations would decide it).
But for this utterly crazy scenario to work, on top of all that the House would have to relent to that second interpretation in all these cases. Needless to say, that won’t happen. (For the detailed look at this scenario, see this Foley piece.)
Making things still more complex, Laurence Tribe and others have plausibly advanced a competing theory: If the two chambers deadlock on which slate of electors to count from a particular state, and fail to count any for that state, the threshold for winning a majority of the electoral college also drops. In every variation of this scenario, Biden also wins, since he’s ahead now.
Everyone absolutely should remain on alert, to be clear. But a Trump win along these lines is absurdly, monumentally implausible.