State legislatures’ role in who wins: Not much, after the election is held
Normally, Congress and state legislatures are in the background of how elections are run. Congress sets the election date, and state legislatures figure out among themselves how to best hold them.
State legislatures decide how electors are chosen: For more than a century, that has meant every state has allotted electors based on which presidential candidate won the popular vote in that state.
When this would become an issue: There are a number of swing states that are both crucial to the election and have divided control of government. Michigan, Wisconsin and Pennsylvania all have Democratic governors but Republican-controlled legislatures, which could lead to partisan battles over how to allot electors should it not be clear who won.
A drawn-out counting process in Pennsylvania in particular has national Democrats on edge. Some fear Republican lawmakers could take advantage of post-election chaos to hand Trump a win, especially after these GOP lawmakers were quoted in an Atlantic article as having discussed the possibility with the Trump campaign. The top state House and Senate Republicans wrote an op-ed in October saying the legislature has no role to play in choosing electors. It’s a stance they reiterated this week, but with the caveat that “under normal circumstances” they won’t play a role. Some interpreted that as leaving the door open for the legislature to intervene.
Where choosing electors might run up against the law: States can constitutionally change how electors are chosen, but they’d have to change the rules before Election Day, not after.
That’s according to experts on law, the Constitution and democracy from a wide ideological range on the cross-partisan National Task Force on Election Crises. Doing so, they argue, would violate federal law that requires that all states appoint their electors based on what happens on Election Day.
Where things could get messy: What if state lawmakers, getting pressure from Trump, decide they do have the authority to pick electors after Election Day based on results different from the outcome of the election?
Such a move would almost certainly get challenged in courts, but what if the courts agree? The Supreme Court’s conservative justices in particular have been inclined in voting rights cases to side with Republican legislatures.
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