“Michigan state law does not envision the state legislature stepping in to directly appoint electors,” said Jessica Levinson, a professor at Loyola Law School who specializes in election law. “The Democratic governor of Michigan would also surely object.”
The Republican leader of the Michigan Senate has said that the Legislature will not name its own electors. But if it did, and the governor named a competing electoral slate, it would be up to Congress to decide which one to accept. Several election lawyers said last week that federal law would favor the slate appointed by the governor, including if Congress deadlocked. Congress could also, in theory, toss out Michigan’s electoral votes altogether.
If Congress did that, or if it chose the Republican slate against the will of a state’s voters, the country would be in constitutional crisis territory. But it still wouldn’t change the result of the election, because there is no single swing state that could erase Mr. Biden’s victory. Multiple states would have to flip for that to happen.
In the most chaotic possible scenario, “Mom and Dad, meaning Congress, come in and say this is who gets their dessert and this is who goes to bed without dinner,” Professor Levinson said. “The punchline, of course, is that in any event, Joe Biden still becomes the president on Jan. 20.”
What does this mean for the American system?
Regardless of the outcome, the fact that the Trump campaign and other Republicans have managed to inject so much chaos into what should be formalities shows how much disruption is possible in the systems that undergird the democratic process.
What is happening is, in many respects, uncharted territory. Michigan election law states clearly what happens if a county canvassing board fails to certify the results of an election: The state canvassing board takes over. But it doesn’t say what happens if the state canvassing board deadlocks, too.
“That’s where the wheels come off,” Professor Levinson said. “It’s not terrifically surprising to me that they don’t say, ‘And if everything collapses,’ because they’re operating under the assumption that people will work in good faith.”