We have received information that the Pennsylvania legislature might consider ignoring the advice of the voters in their state and make their own decision as to who to give the state's electoral votes to.
The move would be most unprecedented but is allowed by the US Constitution which says that state legislatures are responsible for assigning electoral college delegates, not voters. In turn, the legislatures have traditionally turned to the voters for advice in making that decision and have always followed that advice.
Looking up the what the state's constitution says about the matter we found the Pennsylvania constitution to be entirely silent on the issue which means that state's legislature would be able to do what its leaders are contemplating. The perfectly legal but morally questionable loophole not only becomes one of Trump's best hopes of retaining the presidency, but makes clear there is a major blind spot in Pennsylvania's and other states' election systems. A review of several other state constitutions finds those states also allow their legislatures to ignore the advice of voters with regards to who to give their electoral votes. Michigan officials have said that regardless of what the constitution says, their legislature intends to follow the advice of the state's voters. Most people don't realize that when they cast a vote for president they are not really choosing the president themselves but are instead advising their state's legislatures as to they, the voters, think is the person the legislature should give the state's electoral delegates to. There about two or three states out of the 50, however, where the designation and assignment of electors is actually spelled out specifically by the constitution. California may be one of those two states.
It should be noted however, that when we added the possibility that Pennsylvania's legislature might ignored the advice of its voters and give the state's delegates to Trump, Biden still wins the election because he is ahead in Georgia, Arizona, and Nevada which would put him at 276 electoral votes while gaining Pennsylvania will only put Trump at 262 electoral votes which while removing him from office would fall very very short of the total repudiation that Democrats and other Trump opponents have been hoping for this year. The only way Trump can prevent that would be to win the current tie he has with Biden in Georgia.
Questioned about the matter, ranking members of the Pennsylvania legislature denied they were considering such a move. Republican state Sen. Camera Bartolotta said she has not heard any conversations going on about doing so. A candidate for the 2022 gubernatorial election the state, Bartolotta said the idea was just another typical baseless Democrat conspiracy theory.
The state's majority leader, Jacob Corman last month told The Atlantic that if the state's vote remained unsettled by December 7 the state legislature would have to step in and make the appointment of electors directly.
However, Friday, he had changed his mind stating that "I have had ZERO contact with the Trump campaign or others about changing Pennsylvania's long-standing tradition of appointing electors consistent with the popular vote."
One law professor, Jessie Allen, said the legislature could not just step in during the middle of an election and change the rules. They would have to wait until after the election to change the rules which would not apply to the current election but would apply to the next presidential election. In that event Biden would have hard time getting a second term in Pennsylvania unless Democrat's win control of the state's legislative branch.
Most people don't realize that they don't have a constitutional right to choose the president because the constitution gives that right exclusively to the state legislatures which in turn have passed laws governing the process. It is because of those laws that our current presidential elections are held but everything a legislatures does the legislature can also undo. The problem is whether it is legal to do in the middle of an ongoing election just because you don't like the way the vote is going. Such a move is likely to invite lawsuits
When voters vote in presidential elections they are actually voting for one of the two major political parties which gives the state a group of delegates to send to the electoral college.
For the move to work the legislature would have to first change the state's laws on how electors are appointed.
Currently PS 2828 of the Pennsylvania elections code states that "The nominee of each political party for the office of President of the United States shall, within thirty days after his nomination by the National convention of such party, nominate as many persons to be the candidates of his party for the office of presidential elector as the State is then entitled to. If for any reason the nominee of any political party for President of the United States fails or is unable to make the said nominations within the time herein provided, then the nominee for such party for the office of Vice-President of the United States shall, as soon as may be possible after the expiration of thirty days, make the nominations. The names of such nominees, with their residences and postoffice addresses, shall be certified immediately to the Secretary of the Commonwealth by the nominee for the office of President or Vice-President, as the case may be, making the nominations. Vacancies existing after the date of nomination of presidential electors shall be filled by the nominee for the office of President or Vice-President making the original nomination. Nominations made to fill vacancies shall be certified to the Secretary of the Commonwealth in the manner herein provided for in the case of original nominations."
Because it is a statute rather than part of the constitution the legislature could change or revoke it at any time. As noted earlier doing so in the middle of an election could spark lawsuits. But doing so after the election far in advance of the 2024 presidential elections would be less controversial and less vulnerable to potential lawsuits. This is because what ever the legislature does, the legislature can also undo.
Most new Americans and many immigrants to America are not aware that contrary to popular opinion, there is actually no such thing as a constitutional right to vote for president under the federal constitution though, as noted earlier, such a right might be derived from local state constitutions.
At this time, Trump is losing regardless of what the Pennsylvania legislature does because such a change, even if they did today, would not go into effect until next year which means it would not impact how the state's electors are chosen currently but it could prevent or at a minimum make it for more difficult for Biden to win reelection in 2024.
It is also unknown how many, if any at all, other states might follow Pennsylvania's lead in making such changes.
However if the current tie between Trump and Biden and the current lawsuits over the election counting process continue past December 7th, the US constitution would allow the legislature to override state statute and just appoint electors because not doing so would mean the state would be left out of the process when the electoral college meets on December 14th. The legislature would have to hold an emergency session to do so.
Spokespeople for the Pennsylvania Democratic Party acknowledged that the Republicans in the legislature did have the power to do so if the count and the lawsuits were drawn out past December 7th. They said it would be dirty for the Republicans to do so however. They then went on to label Republicans as "liars, cheaters, and frauds" which is the same terms that Republicans use for Democrats.
A lawsuit over the current counting has been appealed to the US Supreme Court according to one source. It's an open question whether the Court will agree to take the case however.
Some critics say the state's Republicans created the mess by refusing to allow early vote counting.
In the meantime, as elsewhere in the country, the results continue to change hour to hour and as you may have already heard, you should get used to it.