A large group of election-law experts has made this point. Nonetheless, there continues to be confusion and misunderstanding in some public commentary about this fundamental legal fact. This confusion has also slipped into some discussions about the Electoral Count Reform Act bill. We will have to continue to find ways to get this basic point across effectively. Here’s a concise effort:
State legislatures cannot ignore the popular vote and attempt to appoint electors after Election Day. Federal law prohibits this (and if you think legislatures could get away with ignoring federal law, they could do the same with respect to any new provision that might be enacted).
State legislatures, if they insert themselves into the vote-counting process, must treat all votes equally. They also cannot change the rules regarding voting after the election. State and federal courts exist to enforce these constitutional requirements.
For state legislatures to insert themselves into the counting and certification process would be bad policy. Courts are the forum most likely to resolve disputed elections consistent with the rule of law. And having to go to court to invalidate any partisan manipulation that might result from state legislatures inserting themselves into the counting process would prolong resolving the election. But these are the minimal legal restraints under which state legislatures would operate, regardless of anything that might be decided about the independent state legislature theory.