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Once the Electoral College has met and every state’s election has been certified, there is no constitutional provision for an “alternate slate” of electors. A group of people who gather in a room and claim they are electors, as state-party-backed Republicans did in a few states on Monday, have no more authority than if the people reading this article decided that they, too, wanted to be members of the Electoral College.
So while Republicans in Georgia, Pennsylvania, Wisconsin, Nevada and Michigan followed the White House’s lead, making or discussing moves to form their own competing slates of pro-Trump electors, it was a theatrical effort with no legal pathway. Electoral College slates are tied to the winner of the popular vote in each state, and all five of those states have certified their results in favor of President-elect Joseph R. Biden Jr.
The most the Republicans could do was claim a symbolic moment, saying that the people who showed up would have been the slates of electors had President Trump won those states. But since he lost them, and numerous state and federal courts have rejected his and his allies’ baseless claims of voting fraud, these groups have no actual significance.
Mr. Trump’s supporters have also seized upon some superficial murkiness in the Constitution and federal law as to whether a state legislature could appoint its own slate of electors.
Since the Electoral Count Act was enacted in 1887, a situation akin to “dueling electors” has happened only once, when Hawaii was in the throes of a close recount in 1960. The governor of Hawaii signed off on a Republican slate of electors for Richard M. Nixon before the recount was completed; when it was finished and showed John F. Kennedy ahead, the governor had to send a new Democratic slate to Congress. The Democratic slate was accepted.
The Constitution stipulates that states select their electors “in such manner as the Legislature thereof may direct.” In modern times the states have done that by holding popular elections that determine to whom their electors will be pledged. Various constitutionally enshrined rights and laws would preclude state legislatures from changing the rules and nullifying the popular will after the fact in pursuit of a different outcome.
Regardless, no state legislatures have seriously explored overturning the results, despite Mr. Trump’s entreaties to state Republican leaders.
It is up to Congress to accept the Electoral College results, which will happen on Jan. 6. Even if a state legislature were to send to Congress ballots from its own appointed slate of electors, many legal scholars have said that Congress would have to give preference to the slate sent by the governor.
In any event, both chambers would have to agree to block the pro-Biden electors. It is inconceivable that the Democrats who control the House of Representatives would consider any such move by Republicans.
While some Trump loyalists in the House, like Representative Mo Brooks of Alabama, have claimed that they will try to challenge the results, many Republican senators conceded on Monday that Mr. Biden had been affirmed as the president-elect. Mitch McConnell, the majority leader, appeared to close off any possibility that he would give much berth to a challenge when he congratulated Mr. Biden from the floor of the Senate on Tuesday.
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