Thread by @nycjayjay

Okay, so let’s talk electors. I’ve seen a lot of folks post asking whether there will be “faithless electors” who could swing the tally, about the nightmare scenario where GOP-led legislatures in the swing states go against the will of their voters and seek to appoint... /1

...their own slates of electors who will vote for Trump, and about the possibility that things get so delayed that states wind up missing the deadline and throwing out the popularly selected slate of electors. These are all different questions, and I’ll address each here... /2

...but in my view none of these scenarios is at all likely to affect the election outcome when the Electors meet on December 14th.

“FAITHLESS” ELECTORS. In the past, and on rare occasions, an elector has voted contrary to the way his or her state instructed, going with... /3

...their “conscience” or their own personal politics rather than respecting the will of the People. In some sense, the Electoral College was set up to be a last stand against some kind of crazy outcome, if you read Fed. No. 68. But over time, the idea that a cabal of men... /4

...(and they were all white men) could overturn the will of the people grew repugnant, and the E.C. largely became ceremonial.

In 2020, the Supreme Court settled the question of whether a state could bind electors to the popular vote of their states... /5

... in a presidential election. In Chiafolo v. Washington, the Court unanimously ruled that states had this power. Currently, 32 states penalize electors who go rogue, but only 15 states (including importantly MI, NV and AZ) expressly remove, penalize or cancel... /6

...the votes of faithless electors. Many experts believe the opinion is strong enough, however, to allow states to cancel or remove faithless electors irrespective of whether a state has a law expressly addressing this. In any event, with Biden projected to win 306 E.C. votes../7

...there would have to be 37 such electors from battleground states other than MI, NV and AZ to get him below 270. That is so far outside the realm of the possible as to be ignorable as a possibility.

GOP LEGISLATORS APPOINTING NEW ELECTOR SLATES. A more disturbing question.../8

... folks have been mulling is whether the GOP-led legislatures in swing states would ignore the will of their people and appoint their own electors. Here is why I believe this is a far-fetched scenario, despite the drum having been beaten by folks like Lindsey Graham... /9

... ,. Donald Jr., and Mark Levin of Fox.

First, let’s look at what the Constitution says. Article II, Section 1, Clause 2 states, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators.../10

...and Representatives to which the State may be entitled in the Congress.”

Take a look at that carefully. It gives to the state legislatures the power to direct the “Manner” in which electors are appointed, but not expressly to appoint the electors themselves. In all.../11

... states, the “Manner” in which the electors are appointed specifies that the people elect them by popular vote.

Some argue that GOP-controlled legislatures could seek to latch onto claims of fraud and move to invalidate the election in their states, with the... /12

...legislatures free to appoint their own electors. There’s actually a federal law that applies here, found at 3 U.S.C. Section 2. That law states, “Whenever any State has held an election for the purpose of choosing electors, and has *failed to make a choice* on the day.../13

... prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” (Emphasis mine.)

The key words here are “failed to make a choice.” The state legislatures would actually have to vote... /14

...to find that their citizens “failed to make a choice,” when in fact in each battleground state, it is clear by a recount-proof majority that they voters have indeed made a choice.

So for a legislature to come back and say, after an election has occurred... /15

...pursuant to the very manner it has authorized, that the people in their states have :failed to make a choice” and now the legislature instead will choose would face immediate constitutional challenge, seems highly unlikely and politically suicidal, not to mention.../16

...immediately challengable in court. I cannot imagine a scenario where it would prevail. In fact, I can’t imagine any politician would want to invite the backlash that would arise.

Case in point, despite what Trump’s cronies delight in suggestion.../17

...PA Senate Majority leader Jake Corman came forward on Nov. 6 to slap down the suggestion that the PA legislature would not move to appoint its own electors, responding to tweets by Mark Levin and Donald, Jr. Pat Toomey said the same today. They aren’t playing this game.../18

... WHAT IF THERE IS A DELAY IN CERTIFYING THE ELECTION? The final worry folks seem to have is that the GOP will somehow manage to run out the clock, with lawsuits that allege fraud in the process, and thus prevent final certification of election results, handing states.../19

...the right to appoint electors of their own.

The problem with this argument is that NONE of pending court cases has resulted in any kind of stay by the courts on the counting of ballots. Everything is proceeding apace. This is because the Trump campaign... /20

... has failed to submit any credible evidence of fraud; they actually have zero admissible and material evidence anywhere of widespread fraud in any of their pending cases. They didn’t even allege fraud at all... /21

...in their federal case in PA because they need to allege each claim of fraud with particularly as to who, where, when and how, and they simply don’t have that kind of evidence for tens of thousands of votes.

Without a stay in place... /22

...the counts will continue, conclude and be certified as expected, and Trump will be out of legal options. Otherwise put, it is not about running out the clock, it’s about trying to stop the clock, and that hasn’t happened at all anywhere. Trump is 0-12 on this.../23

...in his state challenges. There is no reason anywhere to anticipate that the final tabulations of votes won’t be certified in a very timely and usual manner.../24

So there you have it. Electoral college shaninigans appear, at least from my viewpoint, to be just another way for Trump to rile up his base to open their wallets. But they are simply paper tigers. Nothing to lose sleep over. /end