His legal challenges to overturn election results have gone nowhere, so President Trump has floated another way to get around his loss: persuade Republican legislatures in swing states to change state law on how to appoint electors and give them to him rather than President-elect Joe Biden.
Two Republican election officials in Detroit initially refused to certify the largely Black county’s election results. After blowback, they reversed themselves.
Here’s what happened
Tuesday was the first major deadline in Michigan to declare Biden the winner of that state. Counties needed to certify their election results by the end of the day, then give those results to state officials to certify. Once that happens, the election results are official, rather than just projected.
In the state’s most populous county, Wayne County, which covers Detroit, the board of canvassers deadlocked over whether to certify results. Michigan county canvass boards are split — two Democrats, two Republicans. The two Republicans voted against certifying the results, citing concerns about voting errors. It was a surprise to local and state election officials, since the Trump campaign has failed to prove in court a single vote in the area was cast fraudulently.
Republican board chair Monica Palmer explained that she did not “have faith that the poll books are complete and accurate.” Michigan Secretary of State Jocelyn Benson (D) disputed that, indicating on CNN that Palmer may have been conflating minor clerical errors with actual fraud.
The Trump campaign immediately jumped on this to try to seize the election: “If the state board follows suit, the Republican state legislator will select the electors. Huge win for @realDonaldTrump,” Trump campaign legal adviser Jenna Ellis tweeted.
Here’s what she was getting at: Had the county board not been able to agree on whether to certify results, it would have gone to a state board of canvassers to decide, which is also split — two Republicans and two Democrats. (A former Michigan elections director told the Detroit News that he wouldn’t expect that board to deadlock, and if they did, a court would tell them “to do their jobs.”)
If for some reason the state board couldn’t agree, the Trump campaign would have found/created enough chaos to open the door for GOP lawmakers to step in and decide who won Michigan.
How that works legally
It doesn’t, say legal experts. As I explained recently:
The Constitution says states get to decide how to allocate their electors. They have all settled on, sensibly, giving electors to whoever wins the popular vote in their state. Lawmakers can change that, but they’d need to do it before the election, not after.That’s according to experts on law, the Constitution and democracy from a wide ideological range on the cross-partisan National Task Force on Election Crises. Changing how electors are appointed after people vote, they argue, would violate federal law that requires all states appoint their electors based on what happens on Election Day. Any attempt to appoint electors in another way after the election would almost certainly face serious legal challenges in courts.
What’s more, the Trump campaign needs sympathetic legislators to carry this out. That’s a heavy ask. In addition to being legally dubious, what they want these lawmakers to do is pretty brazen and would most certainly lead to massive street protests. That may be why some Michigan Republican lawmakers have said they’re not entertaining the idea of stepping in and deciding who won.
(Some GOP lawmakers in Pennsylvania have been slightly more open to it, but only slightly, saying “under normal circumstances” it’s not their job to assign electors after the election.)
How this ended poorly for the Trump campaign
After widespread pushback, including from election workers and voters in Detroit and also nationally from Democrats and voting-rights advocates who said this was an attempt to disenfranchise Black voters, the two Republican board members changed their votes to yes and came to an agreement to ask the secretary of state to audit the results.
Michigan was the first high-profile state in the Trump campaign’s crosshairs to start certifying its results. Georgia has a deadline of Friday; Arizona and Pennsylvania begin certification on Monday. Nevada is on Tuesday.
Could other election officials in these states decide not to certify results? It’s possible. Republicans in these states are facing sometimes intense pressure to do Trump’s bidding. Most prominently, Georgia Secretary of State Brad Raffensperger (R) said he’s receiving death threats for counting votes and getting pressure to toss out legal ballots.
But the Trump campaign’s first attempt to muddy election results and steal away Biden’s electoral college win didn’t go so well for Republicans. Local Republicans dipped their toe into it and, amid widespread backlash, pulled back.