GOP state leaders brush off idea to hand Trump election by replacing electors
A head-spinning turn of events in Michigan's largest county on Tuesday night foreshadowed a possible nightmare scenario of a coordinated effort to override the will of the voters statewide or in other key battlegrounds.
The chaotic few hours in Wayne County stemmed from two Republican members of the board -- Monica Palmer, who serves as the board of canvassers chair, and William Hartmann -- initially refusing to certify the county's election results, in a move that was sharply criticized as flagrantly partisan, only to reverse course just hours later.
The decision briefly left the board deadlocked 2-2, with Palmer citing concerns over certain precincts being "out of balance," or having recorded discrepancies. Secretary of State Jocelyn Benson later clarified that the discrepancies were clerical errors and not signs of irregularities in the vote tally.
The unprecedented step to temporarily block the certification of results in Wayne County, which is home to Detroit, a city where Black residents make up nearly 80% of the population, prompted hours of public outrage from voters, volunteers, poll workers and local officials. The members of the public who participated in the Tuesday night meeting cast the move as a blatant, targeted effort to suppress African American voters and a hyper-political delay in the process for validating Joe Biden's victory in the state.
Ned Staebler, from Ann Arbor, lashed out at the two GOP members of the board when the meeting opened for public comments, calling them "completely racist, and without an understanding of what integrity means or a shred of human decency."
"The law isn't on your side, history will not be on your side, your conscience will not be on your side," he said.
The board ultimately backtracked and unanimously certified the results -- following suit with the state's other 82 counties -- but also directed the state's chief elections official to do a comprehensive audit of the out-of-balance precincts.
Despite the about-face, the drama fueled fears about the Trump campaign coordinating an effort across critical battlegrounds to subvert the democratic process by pressuring GOP-controlled legislatures to override the will of the people and choose their own slate of pro-Trump electors to vote for the president at the Electoral College's December meeting.
"Certifying the election is not discretionary," said Jonathan Kinloch, the Democratic vice chair of the Wayne County board of canvassers.
He also said that he is concerned about the upcoming state board of canvassers vote on Monday after Tuesday's spectacle.
"We have to do our jobs," he added.
Allies of President Donald Trump raised that unlikely, last-ditch gambit to change the election outcome on Tuesday amid the disarray in Michigan.
Jenna Ellis, a senior legal adviser with the Trump campaign, wrote, "This evening, the county board of canvassers in Wayne County, MI refused to certify the election results. If the state board follows suit, the Republican state legislator will select the electors. Huge win for @realDonaldTrump."
It's a scheme that is rooted in ambiguity in federal law. The Constitution empowers state legislatures to determine the "manner for choosing presidential electors," writes Richard Hasen, an elections expert and professor of law and political science at the University of California, Irvine, with nearly every state, except for two, using the popular vote and a winner-take-all system to apportion electors. Nebraska and Maine award two electors to the statewide winner, and one to the winner in each congressional district.
"In theory, state legislatures could try to declare under a part of the Electoral Count Act that voters have 'failed' to make a choice for president, entitling the legislature to choose electors," Hasen writes. "But voters have made a choice, and there is no plausible argument that fraud or irregularities infected that choice. For state legislatures to do this, we are out of the realm of legal arguments and into naked power politics, where the choice of the president would get duked out in Congress."
States have until the "safe harbor" date, which falls on Dec. 8, to certify the results of the election before the electors gather across the country to formally cast votes for president.
Before Ellis floated the idea, the Trump campaign previously sought to publicly distance themselves from this scenario. The prospect of the Michigan Legislature intervening in a process that by state law they are not involved in is not one that has been publicly embraced in Lansing.
Michigan Senate Majority Leader Mike Shirkey quashed the idea to Bridge Michigan, a local news outlet, saying that they will not move to award the state's 16 electors to Trump.
"That's not going to happen," he said.
A spokesperson for the state Senate majority leader also reiterated that state law does not allow for the legislature to step in and directly select the electors or award the electors to anyone other than the popular vote winner.
Biden currently holds a substantial edge over Trump in the battleground, leading by nearly 150,000 votes, which is almost 15 times the president's margin over Hillary Clinton in 2016. The state board is set to certify the results of the election on Nov. 23.
State leaders in Pennsylvania, Georgia and Wisconsin, too, are putting distance between themselves and any possible strategy to circumvent the popular vote -- against the backdrop of a president relentlessly assaulting the electoral process, with unsubstantiated claims of fraud and a flurry of legal maneuvers that have mostly fallen short in the courts.
Pennsylvania
In Pennsylvania, where Biden's advantage currently stands at more than 80,000 votes, Republican leaders aren't giving any merit to claims that state legislators have constitutional authority to intervene in selecting electors.
"The Pennsylvania General Assembly does not have and will not have a hand in choosing the state's presidential electors or in deciding the outcome of the presidential election," state Senate Majority Leader Jake Corman and House Majority Leader Kerry Beninghoff wrote in an October op-ed.
"To insinuate otherwise is to inappropriately set fear into the Pennsylvania electorate with an imaginary scenario not provided for anywhere in law -- or in fact. Pennsylvania law plainly says that the state's electors are chosen only by the popular vote of the commonwealth's voters," they wrote.
Lt. Gov. John Fetterman, who is a Democrat, also assured that he and Gov. Tom Wolf, are not worried about the state's Republican legislature upending the outcome of the election.
"Everyone just needs to kind of take a deep breath," Fetterman told ABC News' "Powerhouse Politics" podcast on Wednesday. "Everybody knows how this movie is going to end -- everybody knows, including the president."
Pennsylvania's certification deadline also falls on Nov. 23, but Wednesday was the last day the secretary of the commonwealth could request a recount, which could only be triggered if the candidates' margin fell within half a percent of each other. The secretary said last week a recount would not occur.
Georgia
Further south in Georgia, where the state is finishing up a statewide audit of the 4.9 million votes before the deadline to certify on Nov. 20, the president Wednesday morning demanded Gov. Brian Kemp, a Republican, "call in the legislature" as he continues to trail Biden by at least 12,000 votes.
But Kemp, along with Lt. Gov. Geoff Duncan and state House Speaker David Ralston, both Republicans, said last week in a statement that any changes to the state's election laws made in a special session -- the legislature is not currently in session -- would not influence this year's election.
"Any changes to Georgia's election laws made in a special session will not have any impact on an ongoing election and would only result in endless litigation," the statement reads. "We share the same concerns many Georgians have about the integrity of our elections. Therefore, we will follow the coming audit and recount closely, and will work together to keep Georgia's elections safe, accessible and fair."
Wisconsin
In Wisconsin, where the Trump campaign requested a partial recount as just over 20,000 votes separate the president and his Democratic rival, top elections officials in the state told ABC News there was no way the legislature could overturn or invalidate the results of the election.
"I'm not aware of there being any possibility for that. I think that would require court's intervention for anything like that to occur. I don't believe that the legislature has the ability to do something along those lines," said Meagan Wolfe, the chief elections official at the Wisconsin Election Commission.
Wisconsin State Assembly Speaker Rep. Robin Vos said there likely wouldn't be enough evidence of irregularities to overturn the results of the election, but that they would pursue an investigation, according to the Milwaukee Journal Sentinel.
"I think it is unlikely we would find enough cases of fraud to overturn the election," Vos said. "I think it's unlikely, but I don't know that. That's why you have an investigation."
Jeff Mandell, a lawyer who runs Law Forward, a nonpartisan, nonprofit impact litigation firm in Wisconsin, also said there was no path for the Wisconsin State Legislature, which is made up of a state senate and a state assembly, to alter the results -- despite comments from Republicans such as state Rep. Joe Sanfelippo, who said that the state should pursue changes to the election results or processes in casting electoral votes should the investigation find problems with the election, according to the Journal Sentinel.
"Under Wisconsin law, and under federal law, Biden won the most votes in the state of Wisconsin and he's entitled to -- and is going to get -- the 10 electoral votes from the state of Wisconsin. And that's what the law provides for pretty clearly. And there's not an avenue around that," he said.
Mandell believes that not even the oversight hearings to investigate the election in the legislature can overturn the results.
"There's nothing wrong with legislative oversight. This is a perfectly fine part of the legislature's operations. The place in which it gets dicey and which it is inappropriate, is to the extent that anyone is suggesting that the proper use for the purpose of legislative oversight in this instance, is to overturn the results of the election. Legislative oversight is about studying what has happened and figuring out what we can learn to make the law better for the future," he said.
Counties had to complete their canvases by Tuesday and the state has until Dec. 1 to certify the results.
Arizona
In Arizona, where the legislature has no involvement in certifying results or choosing electors, according to a spokesperson for the secretary of state's office, Biden is running ahead of the president by about 11,000 votes.
Rusty Bowers, Arizona's Republican House speaker, also dismissed any potential plot involving the legislature interfering with the state's electors, according to the Associated Press.
"I do not see, short of finding some type of fraud -- which I haven't heard of anything -- I don't see us in any serious way addressing a change in electors," he said. "They are mandated by statute to choose according to the vote of the people."
The state Attorney General Mark Brnovich, a Republican, insisted last week in an interview with Fox Business that he was confident in the election results and although legal action is still ongoing in at least one county, it will do little to change the vote before counties certify results by Nov. 23.
"There is no evidence, there are no facts that would lead anyone to believe that the election results will change," he said. "And so if indeed there was some great conspiracy, it apparently didn't work since the county election official -- who was a Democrat -- lost and other Republicans won. What really happened -- it came down to -- people split their ticket."
ABC News' Cheyenne Haslett and Quinn Scanlan contributed to this report.
