Trump campaign officials and legal advisers are reportedly preparing to appoint their own state electors as a way to secure victory in a contested election, a move that would precipitate an unprecedented constitutional crisis.
The country will in all likelihood not know the outcome of the presidential election on Election Day. It is likely, given a raft of threatening public statements from President Trump, that he will reject unfavorable results.
The president is not directly elected by the people — the official votes are cast by electors on behalf of the voters in their states. Though states have historically chosen their electors by popular vote, the Constitution does not mandate that, saying only that a state shall appoint its electors "in such Manner as the Legislature thereof may direct."
Every state has allowed its voters to make the call in every election since the late 1800s. But in 2000, the Supreme Court held in Bush v. Gore that the states "can take back the power to appoint electors."
According to a Sept. 23 article in The Atlantic, campaign advisers to Trump, in conjunction with Republican state leaders, are preparing to test this theory. Sources in the Republican Party, at both state and national levels, say that the campaign is considering a plan to "bypass" the popular vote results and install its own electors in key battleground states where the legislatures are controlled by Republicans.
Republicans control both legislative bodies in the six closest battleground states: Arizona, Florida, Michigan, North Carolina, Pennsylvania and Wisconsin. Of those six, both Arizona and Florida have Republican governors.
After the national election, the plan goes, the Trump campaign would cry foul about rampant fraud and demand that state legislators ignore the ballot tabulations and choose their electors directly. If the campaign can sustain doubt or confusion about the ballot count, legislators will feel more and more pressure to take up the responsibility before the Dec. 8 deadline when electors' names are sent to Congress for verification.
The Atlantic reported that a Trump campaign legal adviser said this effort would be framed as protecting the will of the people.
"The state legislatures will say, 'All right, we've been given this constitutional power. We don't think the results of our own state are accurate, so here's our slate of electors that we think properly reflect the results of our state,' " the legal adviser told the outlet. The adviser said that by extending long windows for mail-in ballots to be counted after Election Day, Democrats have exposed the tabulation process to allegations of inaccuracy and fraud.
"If you have this notion that ballots can come in for I don't know how many days — in some states a week, 10 days — then that onslaught of ballots just gets pushed back and pushed back and pushed back," he said. "So pick your poison. Is it worse to have electors named by legislators or to have votes received by Election Day?"
When The Atlantic asked the Trump campaign about plans to circumvent the vote and appoint loyal electors, and about other strategies discussed in the article, the deputy national press secretary did not directly address the questions. "It's outrageous that President Trump and his team are being villainized for upholding the rule of law and transparently fighting for a free and fair election," Thea McDonald said in an email. "The mainstream media are giving the Democrats a free pass for their attempts to completely uproot the system and throw our election into chaos." Trump is fighting for a trustworthy election, she wrote, "and any argument otherwise is a conspiracy theory intended to muddy the waters."
Three Pennsylvania Republican leaders told The Atlantic that they had already talked about appointing electors directly, and one of them — the chair of the state's Republican Party — said he had discussed the possibility with the Trump campaign.
"I've mentioned it to them, and I hope they're thinking about it too," Lawrence Tabas said. "I just don't think this is the right time for me to be discussing those strategies and approaches, but [direct appointment of electors] is one of the options. It is one of the available legal options set forth in the Constitution." He said that if the voting process "has significant flaws," then people could "lose faith and confidence" in the system.
Jake Corman, the majority leader of the Pennsylvania Senate, said that if the count draws on for too long, the legislature will have to choose electors. "We don't want to go down that road, but we understand where the law takes us, and we'll follow the law," he said.
That road could lead to a scenario where six battleground states have competing sets of electors, each authorized by different branches of the state — one by the Republican legislature, one by the Democratic governor. Even in Arizona and Florida, where Republicans fully control the government, an independent set of Democratic electors could try to certify their own votes for Democratic nominee Joe Biden in an effort to kick the final call up to Congress.
This almost happened during the 2000 Florida recount: Republican Gov. Jeb Bush certified electors for his brother, George W. Bush, before the recount had been settled. The Gore campaign was ready to assemble its own group of Democratic electors to cast rival ballots, but after the Supreme Court ruled against Gore, he conceded — just days before the Electoral College convened.
Given this plan, The Atlantic reports, it's possible that mirror-image state electors could turn in competing sets of votes, submitted "to the seat of the government of the United States, directed to the President of the Senate" — who, by the way, is Vice President Mike Pence.
The contest at that point gets very complicated, but plays out in one of three ways: If Democrats take the Senate back and hold onto the House, then Biden wins; if Republicans hold the Senate and flip the House, a less likely scenario, then Trump wins; but if Congress remains divided after the election, the Constitution does not offer a solution.
As Constitutional scholar Norm Ornstein told The Atlantic, "Then we get thrown into a world where anything could happen."