Originally Posted by
Cujo
(cont'd)
Mail balloting procedures are fully legal in all states that use them, so asking Republican legislatures either to stop the counting of ballots cast under agreed-upon procedures, or to certify a totally different winner than the people chose, is nothing short of extra-judicial election theft. It should not ultimately be a legal question. And in a healthy democracy, these efforts would not come before the courts at all nor should they be casually floated by a sitting president as the plan. Any attempt to do so is no different than having Biden and his vice presidential pick, Kamala Harris, abducted and dropped out of a helicopter. A slightly better ending for the two of them, I suppose, but the functional outcome for the rest of us would be identical: an election stolen brazenly by unapologetic authoritarians who would no longer have any check whatsoever on their rule.
But the invidious plot that Republicans are hatching in plain sight has multiple legal problems. The first and most obvious is that state legislatures play no clear post-election role in certifying slates of electors from the states. While state electoral laws and procedures are written by legislatures, they cannot simply change the law without the cooperation of the governor. The critical swing states of Pennsylvania, North Carolina, Michigan, and Wisconsin have Democratic governors who would not sign any such legislation, and many key battlegrounds also have Democratic secretaries of state. It is that chief election officer, a Democrat in all four states above plus Arizona, who administers the election and prepares the paperwork for the governor to send to Congress.
This is not to say that they might not try anyway, but they would have minimal legal basis for the effort. If Biden and Harris are ahead in the vote, or even if Republican saboteurs maliciously tie everything up in court until the "safe harbor" deadline six days before the electors are supposed to meet in their respective state capitals on December 14th, those Democratic governors can simply certify the Biden/Harris slate. On the other hand, any scenario that involves a close election in Florida, with its Republican legislature and governor, is one where state Republicans could potentially rewrite the law or certify Trump's slate of electors even if the election results show Biden and Harris ahead.
But that's not the end of the story. America's election process has one more truly Byzantine step. On January 6th — three days after the new Congress is sworn in (but two weeks before the new president and vice president take office) — the House and Senate gather in a joint session to count and certify the results sent by the states. Let's say it all comes down to Wisconsin, which Biden has won by 13,000 votes, and Democratic Governor Tony Evers sends the Biden/Harris slate to Congress to be counted. But the GOP state legislature attempts to certify (again: with no legal basis whatsoever!) the Trump/Pence slate and send their own electors to D.C. Or perhaps the GOP-dominated state supreme court orders the Trump/Pence electors be certified, but Evers refuses to comply and sends his own.