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NYTimes.com

6 November: Where we are

Assuming the numbers hold as they now stand, it’s over. There are no moves that Trump could make that can overcome this result. The reason(ing) is this:

Everyone’s been focused on the vote count and the resulting electoral vote count. By that account, if the undecideds break NV/AZ/PA/GA for Biden, he has 306. With just NV and AZ he has 270. But PA looks like a safe buffer.

Jason Harrow and I have been engaging the fantasy of some — Mark Levin, Donald Trump, Jr., Sean Hannity, Lindsay Graham — that state legislatures reject the vote in their slate, and send an alternative slate for Trump. We published an essay in Lawfare Blog today that showed why our elector’s case, Chiafalo v. Washington, should make that impossible, legally.

But even if it were possible, legally, it is no longer possible politically. The only states that could make that move are states that have gone for Biden (1) with Republican governors and (2) with Republican legislatures. (You need a legislature to invoke the alleged-constitutional superpower power, and you need a Republican governor to certify that slate under the Electoral Count Act. Read more here.) Under these assumptions, there are only two that qualify: Georgia and Arizona. Even if they were to appoint an alternative slate, Biden still wins with 279. That fact means there’s no reason to risk the total outrage that would be triggered by such a move. The Republicans won’t do it. Trump’s just not worth that much.

No doubt, we need to keep the peace. Biden’s team has been brilliant throughout: calm, patient, never over claiming, always claiming pure principle (“count all the votes” as opposed to Gore’s “here are the districts we want you to count”). Biden has maintained the moral high ground throughout. Trump’s performance last night was an embarrassment.

Still, people worry about “faithless electors.” I don’t see the risk. There is no public-regarding reason for voting contrary to how the electors are pledged this year (unlike in 2016, where the effort of the Hamilton electors was to respond to the fact that the winner in the college was not the winner of the popular vote). This year, the only reason would be private-regarding — i.e., bribery. I know people were obsessed about this risk when we argued the Chiafalo case. It seemed weird then. It is clearly weird now. Despite suggestions to the contrary, an elector who accepted a bribe would have committed a crime. The crime would be obvious. There’s no reason to believe Congress would count the vote. It’s just not going to happen.

The key now is to stay safe. Everyone.

Written by

law professor, activist.

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