Trump’s attempt to overturn the election result is ramping up. Here’s what comes next.
Watch the state certifications, the state legislatures, and the courts.
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Wisconsin state Rep. Joe Sanfelippo (R), has already endorsed this idea. "You either have to toss this election out and have a whole new election, or we have our delegates to the Electoral College vote for the person they think legitimately should have won," he said this week. Sanfelippo is on the committee that Assembly Speaker Robin Vos (R) has told to investigate the election. (Though Vos himself said Tuesday he doesn't expect the investigation to change the outcome in Wisconsin.)
Meanwhile, Pennsylvania's Republican Senate majority leader, Jake Corman, has long claimedthat the state legislature plays no role in selecting electors. But in recent days he has begun to hedge that statement somewhat, saying this would be the case "in normal circumstances." ("Pressure has begun mounting on Corman and other GOP state leaders to reverse course and somehow overturn the results of the race," Politico's Holly Otterbein reported Tuesday.)
Yet in both Pennsylvania and Wisconsin, there is a process codified in state law for choosing electors, and it gives the legislature no part. (As Corman wrote just last month, "Pennsylvania law plainly says that the state's electors are chosen only by the popular vote of the commonwealth's voters.") Furthermore, both states have Democratic governors, so the legislatures can't pass a new law changing these rules after the fact.
But there may be one more catch. Supreme Court Justices Neil Gorsuch and Brett Kavanaugh recently embraced a legal theory that, in Gorsuch's words, "state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules."
If three other Supreme Court justices agree with this line of thinking, they could potentially grant partisan state legislatures far more leeway to do what they want with elections, without having to worry about governor's' vetoes, secretaries of states, or elections boards. And if those partisan state legislatures want to appoint electors who will give Trump a second term — well, maybe the Supreme Court will let them do it.
It's a far-fetched scenario. Biden appears to have secure leads in too many states for this to work out.
But it's difficult to outright declare it won't happen. Partisanship can be a powerful thing, and Trump is trying to make "the election was stolen" the standard Republican position. If Republican voters believe him, and demand their representatives take action, then it will become harder for state legislators to explain why they're not doing anything about it.
So to get an idea of what may happen in the coming weeks, watch the state certifications, the state legislators, and the progress of the Trump campaign's various lawsuits.
If the certification process and the elector appointment process remain on track, the rhetoric from Trump's allies will be just that: empty rhetoric. But if we start to see certifications being delayed by the courts, or state legislators preparing serious efforts to appoint their own electors, then an attempt to steal the election from Biden could really be taking off.
