The Washington Post is reporting on a telephone call that the President made to the Speaker of the House in Pennsylvania, asking him to appoint a new slate of electors against the vote of Pennsylvania citizens. That’s the third state in which the President has made this pitch. It comes two weeks after a meeting with Pennsylvania legislators in Gettysburg in which the President and his lawyers tried to persuade the assembled that the “fraud” of the Pennsylvania vote gave them the right to ignore the election and pick their own slate of electors. Like arguments made about presidential electors across history, the claim is that the Constitution vests legislatures with unlimited discretion to select whatever slate of electors they want at, quoting the Supreme Court in Bush v. Gore, “any time”—whether before an election or after it.
This argument is dangerous, even if it is clearly wrong. If just two legislatures followed this flawed legal advice, Pennsylvania and Michigan, and their votes were counted, Joe Biden would be left with just 270 electoral votes. And if just one elector were then “persuaded” to vote for someone other than Joe Biden, that would throw the election into the House of Representatives, where the Republicans retain a majority of state delegations, the unit for deciding who would then become President.
