Will Trump Target the Electors?
By: Jacquie Devigne
Tags: USA, Politics, Election 2020, Elections, Trump

The Electoral College will certify the election results on December 14. Can Trump influence their votes?

Photo by Tiffany Tertipes on Unsplash

The voters had their say. The counting is (almost) completed. Election Day, however, is the first step in a complicated legal process to select the president. Under normal circumstances, the Electoral College process does not receive national attention, but under normal circumstances the losing candidate concedes in defeat.

Even though President Donald Trump has initiated lawsuits across multiple battleground states and tweeted about massive voter fraud, he is unlikely to influence the makeup of the Electoral College. The Electoral College is a complicated system managed by federal and state laws, all of which indicate that Joe Biden will become the next president.

What is the Electoral College?

The Electoral College was established in Article II, Section I of the United States Constitution, and the Electoral College process was later clarified by the Twelfth and Twenty-third Amendments.

When Americans cast their votes for president and vice president, they are actually voting for a slate of “electors” who will represent their states. The electors from every state form the Electoral College.

The number of electors from each state is determined by the population size of the state. The number is calculated by the number of senators (always two) added to the number of U.S. House representatives (which is determined every ten years by the state’s population in the census) that the state has. Out of the 538 total electoral votes, 270 votes are required to secure the presidency.

Article II stipulates that electors cannot hold federal office, but beyond that state legislatures determine who the electors will be. Typically, electors are party loyalists chosen by state party conventions.

What Happens after Election Day?

After the votes are counted, each state must certify the election results. These results determine which electors will make up the Electoral College. The certification schedule is as follows:

Friday, Nov. 20: Georgia

Monday, Nov. 23: Michigan, Pennsylvania

Tuesday, Nov. 24: Minnesota, Nevada, North Carolina

Saturday, Nov. 28: Ohio

Monday, Nov. 30: Arizona, Iowa, Nebraska

Tuesday, Dec. 1: Wisconsin

A lot of media attention has focused on state certification, especially since Republican canvassers initially refused to certify Wayne county’s election results in Michigan. Trump met with Michigan Senate Majority Leader Mike Shirkey and Michigan House Speaker Lee Chatfield on November 20, presumably to propose that the state legislature name their own electors in advance of the November 23 deadline. The Trump campaign may very well try to prevent state certification in other states through a combination of litigation and personal intimidation.

Every state has laws stating that electors must be chosen based off of the state’s popular vote. (Nebraska and Maine are partial exceptions; they award single electoral votes to the winner of each congressional district and two electoral votes to the statewide popular vote winner.) State legislatures could, in theory, change their laws as to how electors are selected but those laws likely would only take effect in future elections. Changing the laws would require approval from both houses as well as the governor’s signature. Furthermore, state lawmakers would have to face their voters’ wrath in their next elections. As a result, major legislative changes are unlikely to occur between now and the certification deadlines.

Each state has slightly different procedures as to how they certify their elections. For example, in Wisconsin, local country boards certify their counties and a state election commission certifies the final result. In Michigan, a board of state canvassers certifies the results.

The federal Electoral Count Act requires that state governors prepare a “certificate of ascertainment” that identifies their state’s electors. State legislatures normally do not influence the process.

While the Trump campaign has filed lawsuits trying to halt the certification process, the overwhelming majority of them have been dismissed. Legal experts are almost unanimous in their opinions that these lawsuits are doomed to failure. The Electoral College electors will likely be determined as planned.

How Does the Electoral College Vote?

Electoral College electors vote on the Monday after the second Wednesday in December of presidential election years, which this year will be on December 14. The electors are expected to vote in line with the popular vote of their respective states. Constitutionally, their votes determine who the outcome of the presidential election.

Overwhelmingly, electors have voted for their parties’ nominee. “Faithless electors” — electors who have voted for someone other than their parties’ nominee — have never changed the outcome of the presidential election. Historically, there have been 23,507 electoral votes in total counted across 58 presidential elections. Out of those 23,507 electoral votes, only 90 votes have been “deviant.” These votes were cast for a variety of reasons, but out of those 90 votes, only one was for their nominee’s opponent.

It is certainly possible that Trump could pick off some electors, but Biden has such a large lead (306–232) that some votes at the margin would not affect the outcome. It would be difficult — if not impossible — to imagine that Trump could convince 36 Democratic electors to refrain from voting for Biden.

Thirty-three states and the District of Columbia require that electors vote for a pledged candidate, although enforcement of those laws varies per state. Fourteen states require that deviant votes be cancelled and for the elector to be replaced with a faithful elector. Six states have adopted the Uniform Faithful Presidential Electors Act, which requires electors to pledge to vote for a candidate, and for the electors to be replaced with an alternate in the event that they do not vote as pledged. The constitutionality of all of these laws was upheld by the Supreme Court in Chiafalo v. Washington.

Given all these legal hurdles, it is unlikely that Trump will find a way for enough electors to support his bid for a second term.

What Happens after the Electoral College Votes?

Congress is responsible for certifying the votes cast by the Electoral College. It is scheduled to read out the results on January 6.

If neither candidate reached the required 270 electoral votes, then Congress would have to resolve any legal discrepancies or select the next president as laid out by the Twelfth Amendment. While the Twelfth Amendment’s process may be favorable to Trump, it is highly unlikely that Biden cannot maintain his sizeable lead. Pivoting the election to Congress would also involve overturning the will of millions of voters.

The certification process in Wayne county is illuminating. The Republican canvassers tried to prevent the overwhelmingly Democratic (and minority) county’s certification, but they backed down in the face of public pressure. Public pressure may be necessary if (and when) Trump supporters continue their attempts to disenfranchise voters.

It is over. Biden has won. Trump is trying to drag out the process, possibly for ulterior motives. He is writing the playbook that future authoritarians will reference. Americans’ faith in democracy has been damaged, and future presidents will have to find ways to manage this public distrust in the electoral process. Americans should be concerned about the ramifications of his current behavior. But in the short term, Trump has no more viable legal avenues to remain in the White House.