Spurred by these events, the Supreme Court decided this summer in Chiafalo v. Washington that states could bind electors to the will of the voters in their states. Although 33 states and the District of Columbia have some form of binding law, just 14 states (representing 121 electoral votes) have laws providing for the cancellation of a faithless vote if an elector breaks his or her pledge. This leaves 417 electors who could go rogue without any means to cancel their vote. Many are now wondering whether electors could provide a means for Donald Trump to win a second term.
Thanks to tweets and retweets from conservative radio host Mark Levin and President Trump's son, Donald Trump Jr., there are a number of scenarios that have Democrats concerned that the Electoral College could undo the results of the November 3 election. One scenario is that state legislatures could choose their own slate of electors, which could give Donald Trump the 270 electoral votes he would need to win a majority in the Electoral College. Another scenario is that "faithless electors" could flip from Biden to Trump, providing him those 270 electoral votes — and a second term.
Having studied the Electoral College for nearly two decades, I'm here to tell you that neither of these scenarios will happen.
First, it is true that state legislatures have the power to determine how electors are appointed and all states made those determinations in advance of the November election. As they have for nearly 150 years, all states chose to have electors selected directly by the voters in their respective states. This is what occurred on Election Day when over 150 million Americans voted for electors pledged to support Donald Trump or Joe Biden. State legislatures, then, have already done their job by choosing how electors would be selected. The voters then chose electors and it is now up to state executive officials to certify those votes. The Electoral Count Act of 1887 clearly indicates that states cannot change the rules after the election has been held. If in the future a state legislature would like to have the authority to directly select electors for their state, they are free to pass that legislation. However, I suspect no state would be willing to take that leap for 2024.
Second, although faithless electors have existed throughout our nation's history — including a record number in 2016 — the chances of Democratic electors bolting from the Biden campaign are virtually nonexistent. Having surveyed electors from each of the past five presidential elections, it is clear to me that they represent some of the most partisan individuals in American politics. They are chosen for their party loyalty, and in the case of Democratic electors the thought of a Trump presidency is a nonstarter. Throughout history, only one elector (in 1796) ever voted for the opponent of their party's ticket. And while I have found a surprising number of electors do consider casting rogue votes, few ultimately choose to do so.
The fact that this type of chicanery is possible at all creates needless uncertainty, intrigue, and questions of legitimacy. This is especially concerning in an election where a majority of Americans voted for the winning candidate — a candidate who is on pace to win the largest share of the national popular vote in three decades, save the elections of Barack Obama in 2008 and 2012.
Although proponents of the Electoral College claim that it helps bestow legitimacy on a winning candidate in close elections, we see the opposite in this case. The uncertainty created by talk of state legislatures seating their own electors as well as the prospect of faithless votes provides fertile ground for conspiracies from both the right and the left about what could happen when members of the Electoral College meet.
These backdoor Electoral College scenarios are not without precedent. In 1960, an effort was undertaken within the Electoral College to deny John F. Kennedy the presidency by throwing the contest not to his Republican opponent, Richard Nixon, but to Southern Democrat Harry Byrd. While there was interest in the plan, only Henry Irwin, a Republican from Oklahoma, cast a faithless vote for Byrd.
In 1976, Jimmy Carter won a very close contest over Gerald Ford. A change in just over 5,000 votes in Ohio and 3,000 votes in Hawaii would have given the election to Ford with exactly 270 electoral votes. After the election, Ford's running mate, Bob Dole, told the Senate Judiciary Committee that the Ford-Dole campaign actively sought to influence Democrat electors to switch to their votes. "We were shopping -- not shopping, excuse me -- looking around for electors." He added that, "It just seems to me that the temptation is there for that elector in a very tight race to really negotiate quite a bunch."
My own research on electors finds that they are regularly lobbied to change their votes and many consider doing so. In 2008, I found that 83% of electors were contacted and urged to not vote for Barack Obama, in spite of the fact that nearly 10 million more people voted for him and he earned a commanding Electoral College victory over John McCain 365-173. These Electoral College lobbyists argued that Obama was ineligible to serve as president because they falsely claimed he was not born in the United States. These baseless "birther" accusations were frequently stoked by the likes of Donald Trump throughout Obama's presidency. Ultimately, no electors defected.
The current talk about the Electoral College salvaging the presidency for Trump is reminiscent of efforts to deny him the presidency just four years ago. While discussion today centers on claims of voter fraud, four years ago the focus was on Trump's character, his failure to win the national popular vote, and concerns over Russian interference in the election. There was a public campaign in the form of a petition signed by millions including Lady Gaga and Pink. Additionally, a skit airing on Saturday Night Live memorably called on electors to flip their votes. These efforts had some effect, as my research found that every single Republican elector responding to my survey was contacted to change their vote and 85% of Democrats were too.
There was yet another campaign that took place within the Electoral College to dump Trump. It was led by Bret Chiafalo and Michael Baca in 2016. The so-called "Hamilton elector" movement encouraged fellow electors to band together to select a Republican unity candidate. They drew upon Hamilton's vision of independent and wise electors who were to be those citizens "most likely to possess the information and discernment requisite to such complicated investigations." They argued that Trump was unfit for office and hoped that at least 37 Republican electors would join their cause to deny Trump a majority of Electoral College votes.
Although 20% of Republican electors responding to my 2016 survey considered casting rogue votes against Trump, just two decided to cast faithless votes -- both for fellow Republicans (John Kasich and Ron Paul).
I am sure that Democratic members of the 2020 Electoral College will face immense pressure to change their votes, but I suspect virtually all will remain steadfast and loyal to the Biden-Harris ticket. Still, Sen. Henry Cabot Lodge's observation in 1999 about the potential harm of electors persists. He warned that electors "are like the appendix in the human body. While it does no good and ordinarily causes no trouble, it continually exposes the body to the danger of political peritonitis."
It is my hope that all states will minimize the danger and adopt appropriate binding laws to remove any doubt that electors could change the outcome when the country casts its ballots four years from now. Until then, we should take some comfort in the view of electors offered by Justice Robert Jackson in Ray v. Blair (1952): "They [electors] always voted at their party's call and never thought of thinking for themselves at all."
While I have found a surprising number of wavering electors in past elections, most all follow the will of the people in their states and I expect that is exactly what will occur this December.
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November 14, 2020 at 11:22PM
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The Electoral College is not going to give Trump a second term - CNN
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