Trump's scheme for state legislatures to overturn the election won't work
President Trump has refused to accept the obvious — that he lost his bid for reelection. His campaign has pursued increasingly desperate gambits in a bid to flip the apparent election results in various swing states, and Republican leaders have generally indulged those efforts by a repeated insistence that the president was entitled to let the “process” play itself out.
But what exactly does that “process” include? For some supporters of the president, that might include Republican state legislatures refusing to seat a slate of Democratic presidential electors chosen by the voters and instead appointing a slate of GOP electors to back Trump. That was always a Hail Mary play: Not only is it a move that shouldn’t even be tried, but it is also unlikely to work.
The possibility of a state legislature end run around the outcome of the November election has been repeatedly hinted at, and Trump seems not to be giving up on the idea. Even before Election Day, the Trump campaign was laying the groundwork “to have electors named by legislators” if enough dust could be kicked up about the accuracy of the counting of ballots from the general election. As the legal battles over ballot counts and recounts have gone on since Nov. 3, Trump’s die-hard supporters haven’t yet abandoned the idea of state legislatures choosing their own slates of presidential electors. Sean Hannity has suggested that legislatures should “invalidate” election results if they believe there was fraudulent voting, and Sen. Lindsey O. Graham (R-S.C.) agreed that “everything should be on the table.” As the Trump campaign has flailed in the courts, it has decided to take a “more targeted approach towards getting the legislators engaged.” To that end, Trump has invited Republican state lawmakers from Michigan to the White House to lay out his case.
The Constitution does give state legislatures a primary role in the process of selecting a president. As the 2016 election reminded everyone, the official ballots for president are not cast by the voters in November but by the presidential electors in December (and then counted by Congress in January). The Constitution directs that each state shall appoint presidential electors “in such manner as the Legislature thereof may direct.” Early in the nation’s history, state legislatures often simply appointed presidential electors themselves, just as they appointed U.S. senators before the adoption of the 17th Amendment in 1913. It did not take long for a more democratic sensibility to take hold: State legislatures established procedures for elections in which the voters could choose electors and thus effectively choose the president, since candidates for elector pledged themselves to vote for a specific candidate for president.
Presidential electors have overwhelmingly been chosen directly by voters for most of American history. By 1796, the first presidential election without George Washington as a candidate, less than half the states were still using direct legislative selection of presidential electors. By 1832, the year Andrew Jackson was reelected, only a single state, South Carolina, still used direct selection of electors by the legislature. The last state legislature to choose electors was Colorado in 1876, and that was only because Colorado was admitted into the Union too late in the presidential election cycle to organize an election.
https://www.washingtonpost.com/outlook/2020/11/20/trump-state-legislatures-election/
Good article if you can get past the paywall.
