Could Legislatures Choose Electors In A Disputed Election?

I've received a number of questions on this topic. I still expect the election challenge to play out in the courts, and ultimately in the SCOTUS, but more and more evidence of both irregularities and outright fraud are coming to light. Bill Barr may not be aware of these problems, but most other people are. Now, to be clear, I think we all know what fraud means. By 'irregularity' I'm referring to a separate (although related) set of problems: Actions by state officials that contravened existing election laws. Both categories if problems are being challenged in court by the Trump legal team, and both categories can affect the validity of an election.

I wasn't aware of a simple clear explanation of how these issues could play out in the various legislatures, but commenter Brad Crawford has provided a link to a very clear article by Professor John Eastman. Eastman covers the constitutional issues involved in such a situation in lucid style. The key difficulty is that in most states electors are--elected. Thus, the question becomes: Is there a way for a legislature to override the choice of electors in the context of a disputed presidential election?

Eastman's short answer is: Yes. However, legislature's aren't courts. They operate in the political sphere, and nothing I'm aware of can force a legislature to take the action Eastman discusses. Whether legislatures decide to take such action will ultimately depend on factors peculiar to the politics of each state--which could lead to further complications, such as the election winding up in the House. I'm not recommending any particular strategy--I offer Eastman's views as a matter of information.

Here is a link to the Eastman article. I recommend the entire article, because Eastman provides considerable detail regarding the various states in question. However, I've included (below) what I consider to be the key points of his argument.

The Constitutional Authority of State Legislatures To Choose Electors

In a number of jurisdictions, state executive branch officials or courts have altered state election laws in ways that may be affecting the outcome of the presidential election, or at the very least creating unacceptable uncertainty about the results of the election. ...

All of these actions are undermining the constitutional authority of the Legislature of each State to determine the “Manner” in which the State’s presidential electors are appointed. See U.S. Const. Art. II, § 1, cl. 2 (“Each State shall appoint, in such Manner as the Legislature thereof may direct, [the] Number of Electors” to which it is entitled). The question is: What can be done about it? For most of the violations, the damage has already been irretrievably done. ...

In the early decades of our nation’s history, most state legislatures selected the state’s presidential electors themselves; only after 1824 did the majority of state legislatures provide for choosing electors by popular election. Nevertheless, the constitutional power to decide on the method for choosing electors remains exclusively with state legislatures. The Supreme Court has described the constitutional authority of the state legislatures to determine the manner of choosing electors as “plenary.” See McPherson v. Blacker, 146 U.S. 1, 35 (1892); see also Bush v. Gore, 531 U.S. at 104. It has even noted that, “whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time.” McPherson, 146 U.S. at 35 ... To be sure, “at any time” would likely not allow the Legislature to pick its own slate of electors after the results of a fair election which had been conducted pursuant to the Legislature’s existing statutory procedures, merely on the grounds that the Legislature would have preferred a different outcome. ... But such is not the case when the existing procedures were not followed, and when significant statistical anomalies raise serious questions about whether the election was fair. In such cases, the “manner” for choosing electors set out by the Legislature was not followed; the constitutional default of the Legislature exercising its plenary power—or, rather, resuming that power—is therefore again at the forefront. ...

This is in accord with federal law as well. Section 2 of Title 8 provides: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” 3 U.S.C. § 2. The intermingling of illegal with legal ballots in significant enough numbers that the election cannot be validly certified, means that the State “has failed to make a choice” on election day, and the appointment of electors therefore devolves back on the Legislature of the State, which has plenary power to decide whether to exercise that appointment power itself, or to craft some other mechanism for appointing the State’s slate of electors.

...

There is more than enough in the way of alteration of the legislatively approved manner of choosing electors to warrant legislatures in several states taking back their plenary power to determine the manner of choosing electors, even to the point of adopting a slate of electors themselves. Moreover, when one adds into the mix the significant statistical anomalies that raise serious concerns of outright election fraud, the Legislatures should feel themselves duty bound to rectify the situation by the constitutional remedy available to them.

Taking all this into consideration, Eastman concludes that Legislatures--faced with these statistical anomalies as well as strong evidence of outright fraud--are duty bound to investigate. If, as a result of their investigation they are convinced that the election cannot be properly certified, then they are entitled by the Constitution to exercise their prerogative to  designate a slate of electors in such way as they deem proper.

Whether they decide to do so is a completely different question.