State legislatures can override the results of elections and designate whichever presidential electors they choose.

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As Americans exhaustively discuss (and often lament) in every presidential election year, the United States does not choose its chief executive based on whichever candidate receives the largest number of votes in a national election, but via an electoral college system under which each of the individual states holds a separate election to select a slate of electors who cast their votes for president.

This unique approach means that sometimes — as happened in 2000 and again in 2016 — the candidate who receives the most votes nationwide does not ultimately win the overall election. When that phenomenon occurs (and sometimes even when it doesn’t), partisans of the losing candidate start ruminating about ways to “game” the electoral college system to install their preferred choice in the White House regardless.

One example of this trend’s playing out in 2020, when U.S. President Donald Trump apparently lost both the popular and the electoral vote, yet he, and many of his supporters, claimed victory nonetheless and asserted claims (without credible evidence) that substantial election fraud had taken place. Some voices proclaimed that states in which Republicans controlled the state legislature should choose electors favoring Trump, no matter how the residents of those states may have voted:

The scheme proposed here reflects a fundamental misunderstanding of how the U.S. electoral college system and electoral law function, however.

When the framers of the U.S. Constitution outlined the workings of the electoral college system, they didn’t specify how presidential electors should or must be chosen, leaving it up to the various state legislatures to each decide for themselves how to appoint their electors:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress …”

This passage meant that state legislatures could opt to choose electors themselves, or appoint a commission to designate electors, or hold a lottery, or flip a coin, or employ whatever other method they saw fit. However, it does not mean that, as suggested by the above tweet, state legislatures now have carte blanche to simply ignore election results and choose whichever presidential electors they want.

After the U.S. Constitution was ratified and went into effect in 1788, states generally used a combination of selection by legislatures and selection by popular vote for designating their electors. By 1836, though, every state had adopted laws establishing the practice of popular voting for electors.

For the most part, each political party submits a list of electors who are pledged to vote for that party’s candidate to state elections officials, and after the election the state appoints the electors submitted by the party of whichever presidential candidate received the most votes. The website of the National Conference of State Legislatures (NCSL) describes this process:

The U.S. Constitution does not specify procedures for the nomination of candidates for presidential elector. The two most common methods the states have adopted are nomination by state party convention and by state party committee. Generally, the parties select members known for their loyalty and service to the party, such as party leaders, state and local elected officials and party activists. In some states, the electors’ names appear on the ballot along with the names of the candidates for president and vice president. However, in most states, electors’ names are not printed on the ballot. When a voter casts a vote for a candidate for President of the United States, s/he is in actuality casting a vote for the presidential electors who were selected by that candidate’s party.

[W]hen a candidate for president wins a state’s popular vote, that party’s slate of electors will be the ones to cast the vote for president of the United States in December. For example, Florida has 29 electoral votes. If President Donald Trump wins the state’s popular vote on Nov. 3, the 29 electors nominated by the Republican Party in Florida will be selected. These 29 people will gather on Dec. 14 to cast their votes for president of the United States.

Although the wording of Article II of the Constitution (quoted above) allows that any state’s legislature could opt for a different method of picking electors in the future, it does not empower any legislature to ignore both their state’s elections results and their existing laws and, willy-nilly, designate whomever they want as electors. (In reference to the NCSL passage quoted above, for example, Democratic legislators in Florida could not decline to recognize Donald Trump as the winner in that state’s election and appoint electors chosen by the Democratic party instead.)

Any state’s legislature could, theoretically, pass a law setting out a new method for designating presidential electors other than popular vote. However, they would have enact such a law prior to Election Day — they could not retroactively change, or just disregard, their current laws to defy the will of voters. State election laws and regulations must be established and in place prior to Election Day; they cannot be improvised or instituted on an ad hoc basis after the fact.

The following is NCSL’s summary of how the full Electoral College process will work in the 2020 presidential election:

  • Spring and Summer 2020: Nomination of Electors. The political parties in each state nominate their electors. Parties and states have different ways of going about this, but a party’s presidential electors are generally loyal or consistent party members. The parties want to be sure they can rely on their electors to cast their votes for the party’s nominee for president.
  • Nov. 3, 2020: Election Day, when voters in each state will select their presidential electors. The names of electors are not on the ballot in most states. Rather, when a voter casts a vote for a presidential candidate, s/he is also casting a vote for the electors already selected by the party of that candidate. If a majority of voters in a state vote for the Republican candidate for president, the Republican slate of electors is elected. If a majority vote for the Democratic candidate, the Democratic slate of electors is chosen.
  • Dec. 8, 2020: Deadline for Resolving Election Disputes. All state recounts and court contests over presidential election results must be completed by this date. (3 U.S.C. § 5). For the majority of states the date of certification is the same as for all contests, but in eight states there is a deadline that either directly references 3 USC §5 or uses similar language, requiring that disputes surrounding the selection of presidential electors be resolved in time to meet the “safe harbor” deadline: Indiana, Iowa, New Jersey, North Carolina, Ohio, Tennessee, Texas and Virginia.
  • Dec. 14, 2020: Meeting of the Electors. The electors meet in each state and cast their ballots for president and vice president. Each elector votes on his or her own ballot and signs it. The ballots are immediately transmitted to various people: one copy goes to the president of the U.S. Senate (who is also the vice president of the United States); this is the copy that will be officially counted later. Other copies go to the state’s secretary of state, the National Archives and Records Administration, and the presiding judge in the district where the electors meet (this serves as a backup copy that would replace the official copy sent to the president of the Senate if it is lost or destroyed).
  • Dec. 23, 2020: Deadline for Receipt of Ballots. The electors’ ballots from all states must be received by the president of the Senate by this date. There is no penalty for missing this deadline.
  • Jan. 6, 2021: Counting of the Electoral Ballots. The U.S. Congress meets in joint session to count the electoral votes.
  • Jan. 20, 2021: Inauguration Day. The president-elect becomes the president of the United States.