Crisis Scenario: A state legislature could attempt to substitute its preferred slate of electors for the results of the popular vote
A state legislature cannot simply substitute its preferred slate of electors for the results of the popular vote.
On November 3rd, voters do not choose the president directly, but rather vote for electors who will participate in the Electoral College in December and then have their votes counted by Congress in January. That process is governed by both the Constitution and federal law. Although there is some speculation this year about state legislatures intervening in the process, those legislatures may not directly appoint presidential electors simply because there are delays or disputes about the outcome of the election.
Although the Constitution provides that a state shall appoint presidential electors “in such manner as the legislature thereof may direct,” state legislatures may not substitute their judgment for the will of the people by directly appointing their preferred slate of electors after Election Day.
If a legislature attempted to appoint its own preferred slate of electors after Election Day it would not only undermine fundamental democratic norms, it would also violate federal law requiring that all states must appoint their electors on Election Day and raise serious constitutional concerns. It could also jeopardize the state’s ability to take advantage of “safe harbor” status under the Electoral Count Act, which would make any such attempt less likely to ultimately succeed when Congress actually counts electoral votes.
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