President Trump’s reelection prospects looked increasingly grim on Friday, as Democratic challenger Joe Biden took the lead in key states that would deliver a majority of the Electoral College, but some prominent conservatives are urging him to look to the contested states’ Republican-controlled legislatures for salvation.
Trump has vowed to fight on, as his legal team fanned out across the handful of battleground states where the campaign is contesting various aspects of the counting process. “We believe the American people deserve to have full transparency into all vote counting and election certification, and that this is no longer about any single election,” the president said in a statement released by his reelection campaign. “From the beginning, we have said that all legal ballots must be counted and all illegal ballots should not be counted, yet we have met resistance to this basic principle by Democrats at every turn.”
While the Trump campaign boasted of the “absolute legal killers” on its team of lawyers, which could lead to Bush v. Gore-style litigation in multiple states ahead of an Electoral College vote, if its prospects in court don’t soon improve, it may wind up needing to make its case in a different venue: Republican state legislatures of Arizona, Pennsylvania, North Carolina, and Georgia. This would require convincing these lawmakers that the popular vote counts in their states were fundamentally flawed and that they should assert their constitutional power to name electors.
It’s an idea that has gained some traction in grassroots conservative circles. “REMINDER TO THE REPUBLICAN STATE LEGISLATURES, YOU HAVE THE FINAL SAY OVER THE CHOOSING OF ELECTORS,” tweeted Mark Levin (all caps in the original), a conservative radio and television host, author, and former chief of staff to Attorney General Ed Meese during the Reagan administration.
Donald Trump Jr., the president’s increasingly politically active son, retweeted Levin approvingly, and others have picked up on the strategy.
“Everything should be on the table,” Sen. Lindsey Graham, a freshly reelected South Carolina Republican, told Fox News’s Sean Hannity.
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress,” states Article II of the U.S. Constitution. Prior to states choosing electors by popular vote, some legislatures did appoint them without direct voter input.
A Supreme Court decision handed down in July on “faithless electors” declared that under the Constitution, state legislatures have “the broadest power of determination” over who serves as an elector, though the precise issue in the case was electors who chose to vote against their state’s popular vote winner as a form of protest. Bush v. Gore, the controversial Supreme Court decision that resolved the 2000 Florida recount impasse and thus the presidential election in favor of George W. Bush, contained a passage noting a state legislature “may, if it so chooses, select the electors itself.”
But the statehouse strategy is a long shot, by all accounts.
“I’ve never heard this talked about at any level,” said a Trump legal adviser who requested anonymity to speak candidly. “The only focus is on making sure legal votes count and illegal ones don’t.”
There would be many roadblocks to pursuing such a strategy. No state legislature has chosen the electors itself since 1876. None have ever overridden their state’s popular vote to do so. There are signs of weakening support among elected Republicans for Trump’s election lawsuits. This would require supporting something even more controversial. The Washington Post published an opinion column describing the idea as a “repugnant plan” to “steal the election” through state legislatures.
Pennsylvania state Senate Majority Leader Jake Corman and House Speaker Bryan Cutler, both Republicans, sided with Trump on not counting illegally late ballots and including GOP poll watchers in the process in a call with reporters on Friday, but they did not endorse any talk of the Legislature getting involved in choosing electors.
“We will follow the law,” Corman said, adding that the state’s election code awards the electors to the statewide popular vote winner. Any change would presumably have to be signed into law by the state’s governor, Democrat Tom Wolf.
Corman went further in an October op-ed he co-authored with state House Majority Leader Kerry Beninghoff.
“We have said it many times and we will happily say it again: The Pennsylvania General Assembly does not have and will not have a hand in choosing the state’s presidential electors or in deciding the outcome of the presidential election,” the two Republicans wrote. “The only and exclusive way that presidential electors can be chosen in Pennsylvania is by the popular vote. The legislature has no hand in this process whatsoever.”
Rank-and-file Trump supporters remain very much in the president’s corner as recounts beckon in Wisconsin and Georgia, with lawsuits occurring in multiple states.
“For months, the American people were told ad nauseum that President Trump was going to get shellacked in the Electoral College, McConnell and Republicans were out in the Senate, Pelosi was going to get a slew of reinforcements in the House, and Texas could possibly go blue for Biden,” said Republican strategist Ford O’Connell. “And why? Because the pollsters said so, and anyone who argued with these “experts” was a Trump-loving sycophant. In short, the Americans were sold a disgusting pack of lies about a ‘blue wave’ that never materialized.”
“Can Trump still win a second term? You bet,” O’Connell added. “It will be without question a heavy lift, but nothing is impossible in the era of Trump.”
