A tweet from a lawyer representing US President Donald Trump has sparked fears the commander in chief may attempt to cling to power by, essentially, ignoring the tallied election results.
Jenna Ellis, who in the past has called the President an “idiot” and claimed his supporters don’t care about “facts or logic,” is now firmly on team Trump.
Last week, she posted on social media that in Michigan, a state that flipped to the Democrats, the legislature could decide to “select the electors”.
She added it was a “huge win for Trump”.
This would mean Michigan’s 16 Electoral College votes assigned according to the wishes of the state’s Republican majority legislature, the equivalent of a state parliament, rather than by voters who, by all accounts, have chosen Democratic candidate Joe Biden. Trump has reportedly invited some Michigan GOP politicians to the White House to discuss exactly this course of action.
Critics have called a strategy to ignore the popular vote in enough states to allow Trump to remain in the White House as a “fever dream”.
A prominent law professor has said it would be nothing more than a “naked power play” and could lead to conflict on the streets.
But the US Constitution, which gifted the country its convoluted election system, is ambiguous on the matter. It certainly seems possible that a state’s politicians could simply brush aside voters’ wishes.
“The President can ask Republican-controlled state legislatures to assign their electoral votes to him,” reported website Slate.
“This manoeuvre would constitute an appalling assault on democracy. But it would be legal.”
PLAN TO FLIP THE STATES BIDEN WON
Way back in early 2020, when coronavirus was popping up on the radar, some election pundits had speculated that Trump might seek to remove the link between voters and the Electoral College.
The theory was wild, and was thought only likely if the pandemic had got so out of control states could be persuaded to halt voting for the election.
But ever since the presidential election was projected for Biden, the strategy has begun to pop up as one possible pathway for Trump to stay in office.
Ellis’ tweet all but confirmed the Electoral College takeover was now in the Trump toolbox.
Her comments followed a chaotic meeting of the board of canvassers in Detroit, Michigan’s largest city, on Wednesday.
The board was charged with reviewing and certifying the city’s results to add to the state’s official total. Preliminary tallies showed Biden had received 50.6 per cent of the vote and would get Michigan’s 16 votes.
By December 8, all states must have resolved any vote controversies and chosen their electors to the Electoral College.
The two Republicans canvassers initially refused to certify the results with one declaring some precincts were “out of balance”, reported the Associated Press.
The canvassers later did indeed certify but before that about face, Ms Ellis declared that if the state board similarly didn’t certify the result, the state legislature would have to take it upon itself to decide its electors to the Electoral College.
Being Republican majority, it’s presumed that electors appointed by the Michigan legislature would choose Trump when they vote on December 14.
Michigan going to Trump wouldn’t change the election. But if several states followed suit, it could be game on.
ENTIRELY LEGAL – BUT RARE
At this point, it’s probably wise to remind ourselves how the Electoral College – that uniquely American election beast – works.
By now we probably all know that the US election is not directly decided by actual voters.
Rather, it’s the 538 electors in the Electoral College who decide who wins. If 270 plump for one candidate, they’re in.
The 538 electors are divvied up by state based on population size.
When they vote, they pick the candidate chosen by the majority of voters in their state.
That’s the accepted way the Electoral College works. But it doesn’t have to happen that way.
The US Constitution states that “each state shall appoint” its electors “in such manner as the legislature therefore may direct”.
But nowhere does it say those electors have to be appointed in a manner that reflects the popular vote.
It’s not just a theory – it’s happened before. In the first Presidential election in 1788 several states, that didn’t have popular votes, appointed their electors.
The Supreme Court has also reiterated that the Constitution allows legislatures to “take back the power to appoint electors”.
Earlier in the year, when the possibility was raised in a story by magazine The Atlantic, the Trump campaign said the very idea was “false and ridiculous”.
But Ms Ellis’ tweet suggests they have come round to the idea.
A strategy from the President’s team could be to sow so much confusion and doubt in the results – even if little of it is of substance – and exert so much pressure on Republican-majority legislatures, that they feel compelled to decide the Electoral College votes for themselves.
“The state legislatures will say, ‘All right we’ve been given this constitutional power. We don’t think the results of our state are accurate, so here’s our slate of electors we think properly reflect the results of our state,'” a Trump campaign insider is reported to have told The Atlantic earlier in the year.
'NAKED POWER POLITICS'
Professor of law and political science at the University of California, Irvine, Richard Hassen said in practice there was less leeway to ignore the election result.
“The Constitution does give state legislatures the right to set the manner for choosing presidential electors, but they have already set the manner: the use of popular election to assign Electoral College votes on a winner-take-all basis,” he told The Atlantic.
“In theory, state legislatures could try to declare under a part of the Electoral Count Act that voters have “failed” to make a choice for president, entitling the legislature to choose electors. But voters have made a choice, and there is no plausible argument that fraud or irregularities infected that choice.
“For state legislatures to do this, we are out of the realm of legal arguments and into naked power politics, where the choice of the president would get duked out in Congress.”
Given that since 1788, no state has taken it upon itself to appoint electors, to do so now “would trigger massive unrest,” he added.
A number of states that flipped to the Democrats have signalled they will not change the way Electoral College voters are appointed.
In October, before the election was called, the leaders of the Pennsylvania’s two parliamentary chambers issued a joint statement saying the legislature “does not have and will not have a hand in choosing the state’s presidential electors”.
More recently, officials in Wisconsin and Arizona have also said they don’t expect to overturn centuries of convention and directly appoint electors.
But there are caveats. Rusty Bowers, Arizona’s Republican House Speaker, told the US ABC network there was no “serious way” of changing how electors were appointed “short of finding some sort of fraud”.
It seems Trump’s legal team, such as Ellis, will be doing all they can the show there is fraud – or at least the appearance of fraud – to make this unlikely scenario move closer to the realm of reality.
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