In recent weeks, there has been a proliferation of articles on how President Trump could effectively change the rules after the election if it appears that he is likely to lose.  For now, I am putting to the side the possibility of an actual coup in which he prevents the new Congress from meeting and certifying a Biden-Harris win or prevents Joe Biden from taking the oath of office after being certified as the winner.  I just don’t see the circumstances in which members of the military or the Secret Service or the D.C. police force would participate in such an extreme stance.  So I will limit myself to an attempt to change the legal winner of the election.

For federal offices, including the president, there are three main sources of law governing the election of such officials– the Constitution, federal statutes, and state laws (which can be the state constitution, state statutes, or state regulations).

Most of the arguments for legal manipulation are based on past history and a misreading of the Constitution.  There are two key provisions in Article II of the Constitution.  First, the electors are chosen “in the manner that the Legislature shall direct.”  The key thing about this provision is that it says that the Legislature directs the manner of choosing the electors.  It does not say that the state legislatures get to choose the electors.  While, in the early days of the country, some legislatures opted to have the legislature actually choose the electors.  that was because the legislature opted for that mechanism.  Today, every state has opted to choose the electors through a popular vote.  While the legislatures could theoretically change the manner of choosing electors, I will get back below to why this will not happen. Continue Reading...