November 6, 2020 12:55PM

No, State Legislatures Aren’t Going To Override The Popular Vote on Presidential Electors

Some right‐​wing figures, including talk show host Mark Levin, have promoted the idea that GOP state legislatures in states like Pennsylvania could swap in a slate of electors of their own choosing in place of the Joe Biden slate that may in time be certified by the state’s election authorities as having won.

The Republican leaders of the Pennsylvania legislature have repeatedly emphasized that they will not do this and, in fact, have no power under Pennsylvania law to do so. “Pennsylvania law plainly says that the state’s electors are chosen only by the popular vote of the commonwealth’s voters,” they wrote last month.

There are many reasons why such a swap‐​the‐​electors scheme is likely to fail, legally and politically. At Just Security, Adav Noti notes that Congress, armed with constitutional power to set uniform election rules, did not oust state legislatures from any role in selecting electors.

It did, however, specify in federal law that Election Day, which has now passed, is the time of that selection. It provided for a narrow and never‐​used exception: “If a state tried to hold an election as scheduled, but that election ‘failed,’ the law allows a state legislature to then create a backup system for choosing electors.” That provision, which might conceivably cover the case of an election pre‐​empted by flood or other natural disaster, would not cover an election held as usual. 

The implication? Even if Pennsylvania law left the legislature free to intervene on choice of electors, it would be too late now.