“The entire election, frankly, in all the swing states should be overturned and the legislatures should make sure that the electors are selected for Trump.”
(Sidney Powell, Trump’s lawyer)
The safe harbor deadline is passed, and now Trump’s efforts to overturn the results of the presidential elections have all gone in vain.
The Trump campaign can no longer file any new lawsuit against the November 3 elections. Now, the next and final step to make Joe Biden president is the Electoral College, which is all set to meet on December 14, 2020.
As a matter of fact, Americans do not choose their president directly. Instead, they authorize the electors to vote to do so.
Now, the direction of the Trump campaign can move to capitalize on faithless electors to steal the American mandate.
Unlike other elections, the efforts to win the faithless electors can go to a whole next level, owing to Trump’s efforts to make this year’s elections controversial.
The Electoral College is the final step in the presidential elections, where electors meet to vote in their states.
Trump supporters are spreading the idea that the Republican-controlled legislatures should ignore the popular votes in their respective states. They suggest that they should send Trump’s slate of electors to vote in his favor.
Can the states help Trump by sending delegates instead of the electors on December 14?
What could be the legal consequences of this?
What does faithless elector mean, and how have they tried to ditch their faith in the past?
What can faithless electors do this time? Let’s have a look.
People Ditching Their Faith: Who are the Faithless Electors?
It is common practice now that the electors are pledged to vote faithfully for the party’s candidate. However, there have been instances when the electors drove away from their pledges.
The electors that violate their pledge and vote against their designated candidate are called faithless electors. As a result, they end up voting for the opposite candidate, minimizing their party’s candidate’s chances of winning the elections.
How Are Electors Selected in The United States?
Before moving toward the idea of the faithless electors, it is necessary to see how the electors are selected in the United States.
There is no rigid mechanism enacted by the Constitution to select electors. However, the Constitution does lay down some restrictions for choosing these electors. Mentioned in Article 2, Section 1 of the Constitution, these restrictions include
- Electors cannot be members of Congress.
- Electors should not hold federal office.
- Electors cannot be anyone “engaged in insurrection or rebellion against the United States, or given aid or comfort to its enemies.”
Today, most of the states nominate the electors by the political party’s state convention. Similarly, the party’s central committee votes to choose these electors in the smaller states ahead of the November elections.
To negate the idea of the faithless electors, it is a common practice that the political parties choose the old and more ideological members of the political party as the electors.
These electors also have some personal connection with the presidential candidate to reduce the risk of the faithless electors as much as possible.
Faithless Electors History: How did the Electors Become Immoral in the Past?
Faithless electors are not new. Most of the time, in a one-sided election, it is impossible for the faithless electors to change the presidential election outcome. This is due to the fact that a lot of electors need to be faithless to change the result, which is highly improbable considering the scrutiny the party takes while nominating these electors.
However, in close races, these faithless electors get more importance. For instance, in the 2000 presidential race, Al Gore needed only four faithless electors to win the White House. Still, it did not happen, as this is not as common and easy as it seems.
Kermit Roosevelt, a law professor at the University of Pennsylvania, summed up the intent of these electors in a few words. He said that,
“Faithless electors in the past … have generally been trying to make a statement, not to change the result…In 1968, a North Carolina elector voted for George Wallace instead of Richard Nixon, but said explicitly later that he wouldn’t have done this if it would have changed the outcome.”
(Kermit Roosevelt, law professor)
So, faithless elector history suggests that the statement of intent is mostly not to steal the American mandate but to be the center of the discussion.
Faithless elector history suggests that it is an old problem. In fact, out of the 58 presidential elections up until 2016, 20 elections had at least one faithless electoral count. There have been 165 instances when electors went against their party to vote for the opposite candidate.
Following is the table mentioning the elections when faithless electors entered double-digits.
|Election Year||Faithless Electors|
It is pertinent to note here that the huge number of faithless electors in 1872 was due to the death of Horace Greeley, who was defeated by then-incumbent President Ulysses S. Grant in the election. As he died before the meeting of the electoral college, 63 electoral college faithless electors emerged, who had promised to vote for him and deviated from their promises.
However, the faithless electors of the 1832 and 1836 elections voted against the party lines due to their differences with the vice-presidential nominees. For instance, 30 electors, all from Pennsylvania, did not want Martin Van Buren as the VP, so they voted against him. Similarly, 23 electors from Virginia refused to vote for vice presidential nominee Richard Johnson.
Faithless Electors 2016: How Faithless Electors Changed Party Lines in Modern Times
Trump won enough electoral college votes in 2016 by fair means. However, 2016 was the year when the faithless electors were at their peak in modern times.
Eight Democrat electors were faithless in 2016 from the states of Washington, Colorado, Maine, Minnesota, and Hawaii. Similarly, two Republican electors from Texas were also faithless in 2016.
This made 2016 a year when the faithless electors entered double-digits for the first time since the 1872 elections.
Three faithless electors from Washington voted for Colin Powell instead of Hillary Clinton. A similar scenario was seen in Colorado, where a Democrat elector rejected voting for Hillary Clinton.
However, a faithless elector fine was imposed on them under state laws for violating their pledges. The Colorado Secretary of State removed the elec tor and appointed another, who then voted for Clinton.
Faithless elector consequences vary from state to state, yet it is a reality that it is not as easy as it was in the past.
The Supreme Court’s Attempt to Save the American Mandate: Laws Against Faithless Electors and Penalties for Faithless Electors
Due to the emergence of the record number of faithless electors in 2016, the Supreme Court emerged on the scene to save the American mandate in the future. The Supreme Court ruled that the states can enforce punishment or replace faithless electors. This thing is clearly indicated by one of the associate judges of the Supreme Court who said,
“The Constitution’s text and the nation’s history both support allowing a state to enforce an elector’s pledge to support his party’s nominee – and the state voters’ choice – for president,”
(Elena Kagan, Associate Justice, US Supreme Court)
Now at least 32 states enforce some mechanism to punish faithless electors.
However, besides faithless electors, Trump can also try not to get the Democrat’s electors seated in the first place. This can happen if states try to nominate their slate of electors instead of the Democrat’s electors. Let’s see what the legal significance is of this option available to Donald Trump.
Sending Trump Delegates to the Electoral College to Steal the American Mandate: The Legal Significance
Political pundits believe that the 2020 presidential election is one of the most uncertain elections in history. So, anything can be expected in this age of uncertainty.
The Brooking Institute’s President of the Governance studies suggested that “state legislature in the battleground states might try to replace the state-certified electors with an alternative slate of faithless-electors equivalents.”
However, Richard Hasen, the law professor, and election expert at the University of California, has largely rejected the idea.
Professor Hasen said that he does not see a way where the legislatures could change electors after they have been selected.
He also added that such a scenario is impossible, as battleground states like Michigan, Pennsylvania, and Wisconsin already have Democratic governors who could keep a check and balance on the matter.
Moreover, it is pertinent to note here that last month President Donald Trump invited the state legislature of the battleground states to the White House and asked them to stop the result certification process.
The legislature rejected the request from the president, saying that there is neither any apparent mismanagement in the vote count nor is there any evidence to support the claims of voter fraud.
Trump’s Attempt to Win the Oval Office Again by Unfair Means
The Atlantic recently claimed that some Republicans had told the media outlets that the Trump campaign is deliberately applying the delaying tactics.
These delaying tactics will provide them with time to urge the Republican-controlled states to appoint their electors, ignoring the American mandate.
The remarks of Trump’s lawyer to send delegates also suggest the sad state of affairs.
The Trump campaign created confusion among the public by the use of term delegates with electors. Most people believe that they are the two same things; however, this is not the case. An elector is nominated by the political parties, while a delegate is replacing him in case of any mishap.
For example, in the above-mentioned case of Colorado’s faithless elector, the secretary of state sent another person to cast the Electoral College vote for Hillary Clinton. The first person who refused was an elector, while the second one replacing him was a delegate.
This raises the question, will Trump try to win the presidency by sending delegates instead of electors?
Although the report in The Atlantic was rejected by Trump’s campaign spokesperson, the president’s refusal to concede still raises concerns in this regard.
During Thanksgiving week, the president said that he would leave the White House if Biden were officially declared the winner. To win the presidency officially, Biden has to win the electoral college votes on December 14.
The states like Arizona and Georgia have a Republican majority and a Republican Governor. As Biden has won these states, Trump is pressuring the legislatures in these states to send their delegates to cast the Electoral College vote instead of electors nominated by the Democratic party.
The Restrictions to State Legislature to Steal the American Mandate
The Supreme Court, in the Bush vs. Gore case of 2000, announced that the members of the Electoral College are bound to the will of the people.
The electoral structure of the country was framed on electors to the Electoral College system. The framers did not give absolute powers to the lawmakers or the governors because they would have made the president too dependent on the legislatures. This would have made the democratic process fraudulent. Therefore, now, electors and not the legislatures vote for the president.
The state legislatures have the superpower to appoint the state slate of electors. However, this power ends after the selection of the electors. So, this does not necessarily imply that the electors will vote as dictated by the state electors.
Lawrence Lessig is a professor of law who, in his recent article published at lawfareblog.com, argued that it is very unlikely that any legislature will select a slate of electors contrary to the electoral vote. He further added that if, in any case, a slate is appointed contrary to the popular vote, the federal laws grant the power to the Supreme Court to declare the act null and void.
All of this makes the case of Trump buying the faithless and sending delegates of electors extremely weak. Hence, at the end of the day, Biden will win the White House as the 46th president of the United States.
The chances to manipulate the system at this last step of the presidential elections are bleak. While Trump may end up getting some of the Democrats’ electoral votes by playing different tactics, it is highly improbable that he wins the presidency again.
All he can do right now is spend his last days in the White House, where he is taking some radical actions these days to destroy the United States.
As he already said that he would leave the White House if Biden wins officially, Biden is all set to officially win the electoral college soon. The denial of the Republican legislatures to Trump is also an encouraging sign, as not many Republicans dare to speak against him.
The landmark decision of the Supreme Court in favor of the American mandate also evinces that the days of Donald Trump are counted in the White House. Hence, he can’t do anything except start running for the presidency once again in 2024.