Trump's Hail Mary - The Electoral College (1 Viewer)

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superchuck500

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After Trump lost the election, he pivoted to the "litigation strategy" which has failed by all objective measures. Barring some kind of intervention from the SCOTUS - not likely at this point and based on proceedings in the lower courts - it should truly be over, but Trump seems to have misperceived one last resort to remain in the White House.

Based on comments from Dr. Jenna Ellis, Esq. (no self-aware lawyer calls themselves this), the campaign is now making an "Article II" push to the state legislatures. So far, she and Rudy have presented to a hearing held by PA state Senate Republicans at a Wyndham hotel in Gettysburg, PA, and they are holding their own "public fact-finding hearings" in Arizona and perhaps Michigan, where state legislators are invited to attend.

It seems that the strategy is based on idea that under Article II, Section 1, "each state shall appoint its electors in such a manner that the (state) legislature may direct", state legislatures have a right, even after the election, to send electors that aren't the electors required under their own state election law (i.e. 48 states pledge by statute their electors on the result of the state's popular vote, winner take all -and then in Kansas and Maine by district vote, winner take all).

In other words, the Campaign believes that if it can convince these state legislatures that their elections were hopelessly flawed, they will fix it by acting to send their own slate of electors to vote for Trump - and this will comply with Article II, Section 1 (and the 12th Amendment that clarified the electoral process).

That's simply not how it works. As the Supreme Court has held, including with the June 2020 opinion in Chiafalo v. Washington, the state legislatures manifest their Article II responsibilities through enacting state election laws - at least where they choose to do so, and they all have chosen to do so (because this republic is based on democratic ideals). There is no basis for the idea that state legislatures can enact state election laws, including laws about the pledging of the state's electoral votes to the winner of the popular vote in the state . . . and then change that result after the fact.

While it is true the some states have provisions that the legislature (or the Governor) can decide the electoral votes in the event that an election cannot be had or a proper election cannot be declared, this clearly does not bestow an arbitrary or even discretionary right to disregard the result of the popular vote that receives the state's electoral votes. Rather these rules allow for a contingency where a vote truly cannot be had (like literally), or where a result by vote is truly impossible due to some kind of situation. It doesn’t mean “we think this was flawed or fraudulent so we’re not gonna follow it” - the state legislatures don’t have the power to interpret whether their state’s vote should be disregarded unless they have given themselves that right before the election (none of them has).

The legislatures establish state election law. The state conducts the election in accordance with that law and the result of the certified popular vote determines the electors. The legislatures can prospectively change election law for future elections but they cannot re-engineer a state’s election law for elections already conducted. Barring a ruling from a court of competent jurisdiction that the result suffers from some legal defect, it is the result and the state’s electors must vote in accordance with it.

This doesn’t mean they won’t try it. I don’t think they (the state legislatures) actually will but if they did it’s almost certain to fail. The saddest part is that Trump is even endorsing this kind of challenge to our election institutions.
 
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GrandAdmiral

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