Although state legislators cannot choose the winner, conflicting laws could give them power to retain authority in an unlikely scenario.
The state legislatures have the power to choose the manner of appointing these electors. Although state legislatures could theoretically amend their laws to provide for the legislative appointment of presidential electors, it would violate a federal statute and the Constitution to do so after the Nov. 3 date set by Congress. State legislatures would have to pass a new law or resolution to make any change and a majority of legislators would have to agree in every state. It would be then most likely be subject to a governor’s approval.
Historically, courts have respected legislative decisions to change how a state appoints electors so long as the changes happen before the election happens, not after the ballots are cast, according to The Conversation. But current laws could lead to complications. While one law requires electors to be appointed on Election Day itself, another law, the Electoral Count Act, gives states up to 41 days after Election Day to designate their slate of electors. The conflict between these laws provides fertile ground for litigation, but is an unlikely scenario.
Although the constitution grants state legislatures the power to choose electors for the Electoral College, only under extraordinary circumstances would legislatures retain this authority after a popular vote on Election Day.