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Newsweek has published a scenario which it claims could lead to Trump reversing an election defeat. I'd like to know if the legal steps in this are correct.

Here is the scenario with political manouvering elided.

  1. Biden wins the popular vote, and carries the key swing states of Arizona, Wisconsin, Michigan and Pennsylvania by decent but not overwhelming margins.
  2. Trump immediately declares that the voting was rigged [by China].
  3. [...]
  4. Trump indicates this is a major national security issue, and he invokes emergency powers, directing the Justice Department to investigate the alleged activity in the swing states. The legal justification for the presidential powers he invokes has already been developed and issued by Barr.
  5. [The states must appoint electors by December 14]
  6. All four swing states have Republican control of both their upper and lower houses of their state legislatures. Those state legislatures refuse to allow any Electoral College slate to be certified until the "national security" investigation is complete.
  7. The Democrats will have begun a legal action [...]
  8. The issue goes up to the Supreme Court, which unlike the 2000 election does not decide the election in favor of the Republicans. However, it indicates again that the December 14 Electoral College deadline must be met; that the president's national security powers legally authorize him to investigate potential foreign country intrusion into the national election; and if no Electoral College slate can be certified by any state by December 14, the Electoral College must meet anyway and cast its votes.
  9. The Electoral College meets, and without the electors from those four states being represented, neither Biden nor Trump has sufficient votes to get an Electoral College majority.
  10. The election is thrown into the House of Representatives, pursuant to the Constitution. Under the relevant constitutional process, the vote in the House is by state delegation, where each delegation casts one vote, which is determined by the majority of the representatives in that state.
  11. Currently, there are 26 states that have a majority Republican House delegation. 23 states have a majority Democratic delegation. There is one state, Pennsylvania, that has an evenly split delegation. Even if the Democrats were to pick up seats in Pennsylvania and hold all their 2018 House gains, the Republicans would have a 26 to 24 delegation majority.
  12. This vote would enable Trump to retain the presidency.
  • You can skip steps 3-9. Should step #2 be heard on the floor of the house, the vote by states provision kicks in. – Joshua Oct 27 at 19:57
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The first legal issue relates to the step where "Those state legislatures refuse to allow any Electoral College slate to be certified until the 'national security' investigation is complete". The "electoral voting" law regarding voting of presidential electors is ARS 16-212. First,

On the first Tuesday after the first Monday in November, 1956, and quadrennially thereafter, there shall be elected a number of presidential electors equal to the number of United States senators and representatives in Congress from this state.

Second,

After the secretary of state issues the statewide canvass containing the results of a presidential election, the presidential electors of this state shall cast their electoral college votes for the candidate for president and the candidate for vice president who jointly received the highest number of votes in this state as prescribed in the canvass.

Finally,

A presidential elector who knowingly refuses to cast that elector's electoral college vote as prescribed in subsection B of this section is no longer eligible to hold the office of presidential elector and that office is deemed and declared vacant by operation of law. The chairperson of the state committee of the political party represented by that elector shall appoint a person who is otherwise qualified to be a presidential elector. The replacement presidential elector shall cast the elector's electoral college vote as prescribed by this section. Notwithstanding section 16-344 and any other statute, the nomination paper and affidavit of qualification of the replacement presidential elector may be completed and filed with the secretary of state as soon as is practicable after the presidential elector's appointment.

There is no provision for legislative "certification" and no authority to override the procedure set down in law. The appointment statute (344) gives sole discretion to the state party chairmen to appoint that party's electors:

The chairman of the state committee of a political party that is qualified for representation on an official party ballot at the primary election and accorded a column on the general election ballot shall appoint candidates for the office of presidential elector equal to the number of United States senators and representatives in Congress from this state and shall file for each candidate with the secretary of state, not more than ten days after the primary election, by 5:00 p.m. on the last day for filing:

Name, residence and postal address and an affadavit of residence in the state are needed. Again, there is no provision for "certification" by the state legislature. The certification that takes place is that the electors sign the presidential elector ballot certificate of vote, e.g. Arizona 2016, which simply notes that the electors have been "duly elected". In general, Arizona law does not require "certification" of any election. Pennsylvania law on the election of electors (25 PS 2878) similarly does not give the legislature any veto power over the electoral process. The law on the voting of the electors also does not provide for any legislative intervention.

This does not mean that the legislatures cannot pass an act ceremonially "de-certifying" or invalidating the 2020 election in general, or the nominations of one or both parties. Or, they could pass an act amending the election process to require legislative certification in the case of presidential electors. There is no realistic chance that such an act would be found legally sound, and is outside the scope of the existing Newsweek fantasy.

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  • This analysis is mostly specific to Arizona law. I think, as is quickly pointed out in regards to Pennsylvania, this is actually more or less the same across these swing states. I think the analysis needs more points emphasized and clarified, however. For one, while existing laws in these states may prevent direct Legislature shenanigans, I definitely don't accept your apparent premise that the Legislature could not simply change what the law is; they very specifically have that power under the constitution. The crux then becomes the governor, as Democratic ones can simply veto it. – zibadawa timmy Jul 4 at 16:24
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    The main point about changing the law is that it isn't part of the fantasy ("is there any imaginable way" is too broad a question). I propose that you pose this as a separate question: does a legislature have the power to retroactively change the law. – user6726 Jul 4 at 16:40
  • Fair enough, I suppose you're right and there's no unambiguous reference to the legislatures attempting to change relevant laws. – zibadawa timmy Jul 4 at 17:01
  • Constitutionally, the method of selecting a state's electors is completely up to that state's legislature, and historically, many states have in the past selected electors by the legislature and not by popular vote. In the case of a disputed election where the Secretary of State declines to or is prevented from certifying the winner for an extended period, the legislature could decide to simply choose the electors themselves by passing a new law. There is likely legal, and was briefly considered by the Florida legislature during the 2000 election recount limbo. – user102008 Jul 5 at 8:04
  • In Bush v. Gore, the Supreme Court wrote "The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors." – user102008 Jul 5 at 8:25
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He wouldn't even need to "invoke emergency powers". It would just require a Republican-controlled state legislature and governor to choose Republican electors even if there is a narrow Biden win in that state. This might plausibly happen if many Republicans buy into a theory of "election fraud" calling into doubt the results, even if such claims are unsubstantiated. (A large fraction of Americans already regularly believe theories about illegal voting and massive election fraud despite these being regularly debunked or there being no credible evidence for them, so this is not hard to imagine.) Republican officials in the state can use such claims as an excuse to not certify Biden as the winner in the state, call into doubt the results, and have the legislature choose the electors directly due to this supposed lack of correct results.

Under the US Constitution, state legislatures have the power to decide how to award electors of the state, and they do not have to do it by popular vote. Many states had the legislature appoint the electors at some point in the past, e.g. as recently as 1876 in Colorado, and they can do so again. There is no legal barrier to state legislatures appointing electors directly; the only barrier is popular opposition, but that can be overcome if enough of the population can be made to believe that the election results are fraudulent.

In fact, in the infamous 2000 presidential election in Florida, the Florida legislature considered appointing the Republican electors directly to meet the deadline for the electors to meet, if the mess of the election recounts continued to be unresolved. In the decision in Bush v. Gore, the US Supreme Court said:

The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (“[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated”) (quoting S. Rep. No. 395, 43d Cong., 1st Sess.).

There is a good chance that the courts would not block a state legislature appointing electors, even if it was after the election.

If a state did that, Democrats in Congress are sure to object to the state's electoral votes during the joint session to count the electoral votes. However, according to 3 USC 15, if only one set of electoral votes is received from a state, then it will be counted unless both houses separately vote to reject it. Democrats might control the House, but they might not control the Senate in 2021, in which case they would not be able to reject it. In the case where there are two sets of electoral votes purporting to be the correct ones, the process is more complicated, but basically, either both houses agree on which ones are the right ones, or they both vote to discard votes, but if the houses disagree, then the set of electoral votes certified by the executive of the state will be counted (and the executive is likely to be Republican in this case).

But even if the Democrats manage to get the state's electoral votes discarded, they still don't win -- discarded votes don't count for Biden either. I had asked a previous question about whether discarded votes reduces the number of votes needed for a majority, and the answer was that it depends on whether Congress determines that the electors were properly appointed, and I am not really sure how that would be determined in this case.

If discarding the votes doesn't reduce the threshold for majority, then discarding the votes doesn't make Biden win if he didn't have enough to win before discarding the votes. It might instead throw the election into the House (and Senate for VP), which as the article notes, votes by state delegations, in which Republicans have an advantage even though Democrats are in the majority in the House. (Though this will be done by the next Congress elected by the election, so the makeup is unclear, and it is possible that Democrats pick up enough seats to get a majority of state delegations. But if the presidential election is disputed, some congressional elections may be disputed too, so there might be a crisis of who gets to sit in Congress for the contingent presidential and VP elections.)

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I think this one is easy to answer because it involves the Supreme Court in step 8. The Supreme Court will review steps 1-7 and make a ruling that makes them legally sound (or unsound). The ruling might also indicate whether steps 9-12 are legally sound (or unsound).

That will settle it legally. If the Supreme Court makes an extremely unpopular decision, then it is entirely possible that people may feel empowered to ignore them.

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