Trump and his fans are trying their best to convince themselves that he has not lost the election. But time is running out for them. The claims of fraud that have been filed in state and federal courts across the country are being tossed out one after another and prestigious law firms are withdrawing from some cases because bringing frivolous lawsuits damages your reputation and can result in judges slapping you down, and the easy money these cases bring in may not be enough to compensate for the ignominy. Clown lawyers like Rudy Giuliani have no reputation to protect and thus can make the most outlandish claims inside and outside the courtroom, which is probably why Trump likes him so much. Lawyers like him are the only only ones really benefiting from these lawsuits and are enriching themselves off the deluded dreams of the members of the Trump cult who are donating to the ‘legal defense fund’, although the fine print says that up to 60% of that money will actually go towards retiring the campaign debt.
The last hope for many of the die-hard Trump supporters clasping desperately at straws is to hope that some key states that Trump lost but have legislatures with Republican majorities will use a little-known provision in the US constitution to override the election results by ignoring the electoral college voters who were elected on November 3 and appoint new ones who will award their electoral college votes to Trump.
The theory is rooted in the fact that the U.S. Constitution grants state legislatures the power to decide how electors are chosen. Each state already has passed laws that delegate this power to voters and appoint electors for whichever candidate wins the state on Election Day. The only opportunity for a state legislature to then get involved with electors is a provision in federal law allowing it if the actual election “fails.”
If the result of the election was unclear in mid-December, at the deadline for naming electors, Republican-controlled legislatures in those states could declare that Trump won and appoint electors supporting him. Or so the theory goes.
The problem, legal experts note, is that the result of the election is not in any way unclear. Biden won all the states at issue. It’s hard to argue the election “failed” when Trump’s own Department of Homeland Security reported it was not tampered with and was “the most secure in American history.” There has been no finding of widespread fraud or problems in the vote count, which shows Biden leading Trump by more than 5 million votes nationally.
However, while Republicans have shown a disgraceful willingness to ignore so many of the norms of democracy in their abject subservience to Trump’s naked pursuit of power, this one seems like a bridge too far and even Republican legislators in those states seem to be wary of going there.
Republican leaders in Michigan and three other critical states won by President-elect Joe Biden say they won’t participate in a legally dubious scheme to flip their state’s electors to vote for President Donald Trump. Their comments effectively shut down a half-baked plot some Republicans floated as a last chance to keep Trump in the White House.
State GOP lawmakers in Michigan, Arizona, Pennsylvania and Wisconsin have all said they would not intervene in the selection of electors, who ultimately cast the votes that secure a candidate’s victory. Such a move would violate state law and a vote of the people, several noted.
“I do not see, short of finding some type of fraud — which I haven’t heard of anything — I don’t see us in any serious way addressing a change in electors,” said Rusty Bowers, Arizona’s Republican House speaker, who says he’s been inundated with emails pleading for the legislature to intervene. “They are mandated by statute to choose according to the vote of the people.”
Trump’s supporters know that even if they could persuade state legislatures to do this, they would be immediately sued. But they think that such an important case would end up in the conservative-dominated US Supreme Court and that it would rule in Trump’s favor.
More sane Republicans are hoping that Trump will soon give up this futile effort and get them off the hook.
“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.
This maneuver by state legislators is not going to happen. What talk about it signifies is the desperation and delusion of the Trump cult members.