The Trump campaign is reportedly planning a way to bypass the 2020 election results in key swing states

• The Trump campaign is weighing a postelection strategy that would bypass the results in key swing states by installing electors who would vote for the president in the Electoral College even if he loses, according to a report by The Atlantic.
• Election experts have said that moves by state legislatures to appoint their own slate of presidential electors after the fact would violate federal law.
• The Trump campaign's plan would focus on swing states with Republican-led legislatures, including Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin, The Atlantic reported.

The Trump campaign is weighing a postelection strategy that would bypass the results in key swing states by installing electors who would vote for the president in the Electoral College even if he loses, The Atlantic reported.

Using a rationale of baseless claims about widespread voter fraud and other irregularities with mail ballots, President Donald Trump "would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly," The Atlantic's Barton Gellman wrote, adding that "the longer Trump succeeds in keeping the vote count in doubt, the more pressure legislators will feel to act before the safe-harbor deadline expires."

Experts have said that moves by state legislatures to appoint their own slate of presidential electors after the election would violate federal law, because Congress enacted a statute in 1845 requiring states to appoint their electors to the Electoral College on Election Day.

Many states have expanded access to voting by mail and, either legislatively or pursuant to court orders, extended deadlines by which ballots can be received — moves that could reduce the number of disenfranchised voters.

In previous years, enough of the vote has been counted by Election Day for networks and newspapers to announce a winner. Importantly, the results of any election are never finalized on election night; in most places, it takes officials days or weeks to fully canvass and then certify the results.

But as more Americans this year are expected to cast mail ballots, which take longer to process and count than in-person votes, it's very likely that there won't be enough ballots counted to declare a winner on election night.

During the canvassing process, canvassing boards — which are usually composed of county-level election officials — process and tabulate not just the ballots of people who voted in person, but absentee and mail-in ballots, provisional ballots, and ballots from overseas and military voters.

With the key swing states of Michigan, Pennsylvania, and Wisconsin unable to legally process or count absentee ballots until Election Day, and with ongoing legal disputes over ballots received after Election Day, the Trump campaign is reportedly looking to cast doubt on the results and extend the battle to Inauguration Day.

The Trump campaign's plan would focus on pivotal swing states with Republican-led legislatures, including Arizona, Florida, Michigan, North Carolina, Pennsylvania, and Wisconsin. Arizona and Florida also have Republican governors, while the latter states have Democratic governors.

Lawrence Tabas, the chairman of the Pennsylvania GOP, said the elector strategy was something the party could pursue.

"I just don't think this is the right time for me to be discussing those strategies and approaches, but [direct appointment of electors] is one of the options," he told The Atlantic. "It is one of the available legal options set forth in the Constitution."

The Atlantic reported that at a 2016 rally in Delaware, Ohio, Trump suggested he'd adhere to the election results only if he won.

"I would like to promise and pledge to all of my voters and supporters, and to all the people of the United States, that I will totally accept the results of this great and historic presidential election," Trump said at the time, adding, "If … I … win!"

And in the 2018 midterm elections in Florida, when GOP Sen. Rick Scott and Gov. Ron DeSantis led by substantial margins on election night based on the in-person vote but saw their leads narrow over the next few days as mail ballots were processed, Trump tweeted that both elections should be called based on the in-person vote reported on election night.

"An honest vote count is no longer possible-ballots massively infected," he wrote.

How would this plan work, and how might it backfire?

While Americans have a right to one vote, there is no constitutional right to vote for the president, and Americans don't directly elect the president. Each state appoints a certain number of electors that corresponds to its number of US House representatives and senators.

The Electoral College was conceived at the Constitutional Convention in 1787 as a compromise between those who wanted Americans to elect presidents directly and those who wanted Congress to have the deciding vote.

Under Article II of the Constitution, state legislatures have the authority to appoint their states' electors in a manner they determine — which legislatures could cite as a justification for directly appointing loyal Trump electors.

But an effort by a legislature to go rogue and override the results of the popular vote in the state could backfire and be more trouble than it's worth.

As the National Task Force on Election Crises explained in a recent legal memo, federal law doesn't require state legislatures to hold popular elections, but it does require states to appoint their slate of electors on Election Day, or the first Tuesday after the first Monday in November.

State legislatures that attempt to appoint their own slate of Trump electors after the election would likely spur court challenges and risk having Congress decide how the state can allocate its electoral votes.

The "safe harbor" deadline, by which states must certify their results without risking congressional involvement, falls on December 8 this year. Six days later, the electors convene to vote.

The task force's memo noted that "the consequences of failing to adhere" to the safe-harbor requirements established by federal law "are significant."

"Losing the safe harbor protection leaves Congress to decide which electors to count from a state, without mandatory deference to the preferences of either the state's voters or legislature," the memo said.

Edward Foley, a University of Ohio law professor and elections scholar, wrote in a 2019 law-review article that "the procedures for handling a disputed presidential election that reaches Congress are regrettably, and embarrassingly, deficient."

Both the 12th Amendment and the Electoral Count Act of 1877 hold remarkably unclear directions on how both houses of Congress are to resolve two separate slates of electoral appointments, Foley said.