Social media was thrown into a tizzy Wednesday when The Atlantic published a story that President Donald Trump’s campaign was considering maneuvers to circumvent the election results in several battleground states should he lose in November.
“With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly,” writes Barton Gellman.
Reaction on Twitter was quick and heated:
It certainly sounds like a nightmare scenario. Article II of The Constitution provides that “Each State shall appoint in such Manner as the Legislature thereof may direct” electors who cast their ballots as part of the Electoral College. That gives each state a wide latitude in how their electors are chosen and might suggest the Trump campaign could be on to something.
The hand-wringing caused by The Atlantic story intensified Wednesday afternoon after Trump refused to say he would commit to a peaceful transfer of power if he were to lose the election. Sen. Mitt Romney spoke out on Twitter, saying a peaceful transfer of power was 'fundamental to democracy," and the “suggestion that a president might not respect this Constitutional guarantee is both unthinkable and unacceptable.”
It would likely take an extraordinary series of events for this to come to fruition.
Essentially the Trump campaign could launch a series of legal challenges to mail-in ballots in battleground states where Republicans have a majority in the Legislature. The aim would be to push the selection of a state’s presidential electors close to or beyond the “safe harbor” date of Dec. 8, which is the deadline to submit the names of electors to Congress. If the submission goes past that date, it’s up to Congress to decide which electors, if any, are allowed to cast a state’s votes. The theory goes, Republicans would select Trump electors no matter what happened with the popular vote.
In Utah, the electoral vote process is spelled out in state code. Each political party selects six presidential electors, and alternates, who will cast Utah’s votes on Dec. 14. This year’s Republican electors who will cast votes if Trump wins the state in November — which is highly likely — were picked at this year’s state convention and include several GOP luminaries like Attorney General Sean Reyes and former Utah House Speaker Greg Hughes. Their Democratic counterparts who would come into play if Joe Biden wins include party chair Jeff Merchant and former Senate Minority Leader Ross Romero.
No provision now exists in Utah state law allowing legislators to override the popular vote in November. The code specifically provides that “the highest number of votes cast for president and vice president of the United States elects the presidential electors” for the winning party. If the winner is unaffiliated or a write-in candidate, then their presidential electors have that authority.
Another hypothetical bit of mayhem is electors casting a ballot for a candidate other than the winner of the presidential election in the state, also known as a “faithless elector.” The Supreme Court ruled this year that states can force electors to cast their ballot for the popular vote winner. Although it’s not in state law, the Utah Republican and Democratic parties have provisions binding those votes.
“If an elector failed to do that, they would be removed and replaced,” said Justin Lee, Utah’s director of elections.
Lee explained that it would require a wholesale change in state law for the Legislature to have the authority to appoint their own electors since it does not exist right now. There’s probably not much incentive to make that change either. Utah is not a battleground state this year and has gone for every Republican presidential candidate since 1964.
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