Even before President Donald Trump was diagnosed with COVID-19, the 2020 presidential election contained several unprecedented variables. One major concern was that Republicans in key states might overrule voters and appoint a slate of pro-Trump electors in a state Joe Biden wins, or where the result remains unclear. The Pennsylvania GOP took one step in that direction this week, and HuffPost Senior Reporter Paul Blumenthalcovered it after writing a definitive piece on this nightmare scenario. He spoke with Must Reads about the lurking dangers that keep Democratic election lawyers up at night.
OK, quickly run us through what the elector process is after a state is won by one candidate or another.
Each candidate has a slate of electors who will cast their votes at the electoral college vote. When a candidate wins a state, it is their electors who are certified. These electors then go on to cast their votes during the electoral college voting process on Dec. 14. The results of the electoral college vote in each state are then sealed and sent to Congress, which meets on Jan. 6 to open the results and vote to accept them — or not. Once Congress accepts each state's electoral college votes the president is inaugurated on Jan. 20.
Most people I think would assume that the winner of a state would of course, by law, have his or her electors sent to Congress. But tell us why that's not the case.
Well, it is supposed to be that way. The problem arises if one candidate, or more, contests the results of a state's election. This happened in 1876 when Democrats said the results in four former Confederate states were tainted by voter fraud and Republicans claimed that the results were instead tainted by white terrorist violence preventing Black voters from casting their ballots. (Both sides had a point.) And so both sides had state officials certify opposing slates of electors and sent them to Congress. This was only resolved days before the inauguration when Democrats let the Republican take office in exchange for him pulling troops out of the South and ending the policy of Reconstruction. Congress passed a law meant to create a legal system for dealing with such conflicts if they arose in the future, but, like many laws written in the late 19th century, it is poorly written and contains conflicting language. Legal scholars today still have opposing interpretations of key parts of it.
The scenario that disturbs election law experts today is if President Trump were to carry out his strategy of claiming any absentee ballots counted after Election Day amounted to fraud and asked Republican officials of any office in a state to agree with him. A Republican-led legislature could theoretically, if not necessarily legally, certify Trump's slate of electors while a Democratic governor could certify a slate for Biden were he to be the actual vote winner. This could then end up with a state sending two slates of electors to Congress. And while many legal experts agree that the law passed after the 1876 election states that Congress must favor the slate certified by a state's governor, there are competing legal theories that Republicans could push in both the courts and the arena of public opinion.
In what swing states is this of potential concern?
This strategy could only be possible in a state with divided government. That means states with Democratic governors and Republican-led legislatures like Michigan, Pennsylvania and Wisconsin. Minnesota also has a Democratic governor and one chamber of its statehouse under Republican control. And some experts state that the Democratic secretary of state in Arizona could certify Biden electors if questions about the results arise in Republican-controlled Arizona.
But attention has largely focused on Pennsylvania, as The Atlantic reported that Republican officials there have discussed this scenario among themselves and the Trump campaign. Republicans in the legislature moved this week to create a special committee to investigate the 2020 election, which many see as the first step to using trumped up allegations of voter fraud to toss the results and certify Trump electors.
What, if anything, can be done to avoid this?
This scenario requires a lot of actors to take rather extreme action to ensure Trump "wins" reelection. It's quite possible that any number of the people needed to pull this off choose not to go along with it. There is also the possibility that Trump loses by large enough margins for this type of scheme to not be realistic. It is also legally dubious, as a number of legal experts suggest that the state legislature must first pass a law prior to the election for it to be able to certify electors. There are, naturally, other interpretations that favor a legislative certification.
Another way this could become impossible is if Democrats win control of both the House and Senate. There is no chance they would vote to accept Trump electors certified by Republican legislatures based on baseless voter fraud charges. Even before that, it's possible for Republicans to lose control of a state legislative body in November in a state where the newly elected legislature takes office prior to the electoral college meeting, which is true of both Florida and Pennsylvania. But the main way to avoid this is for Trump to lose resoundingly on election night. | 
