Posted Sat, November 28th, 2020 6:13 pm by Tom Goldstein
Much has been written about how there is essentially no chance that the Supreme Court will intervene in any of the existing litigation in a way that will call into question Joe Biden’s victory. Once the court makes clear it is going to stay out, supporters of President Donald Trump (and pro-Trump media and commentary) are likely to turn their attention to one last hope: the Electoral College. But that is no real hope at all.
Start with a brief civics reminder. The Constitution provides that voters for president in this country actually vote for “electors,” who in turn vote for president in the Electoral College. All but two states assign all of the state’s electors to the winner of the state’s popular vote. (The two remaining states, Maine and Nebraska, allocate some of their electoral votes based on the popular-vote winner in each of the states’ congressional districts.)
Each state gets the same number of electors as it has combined senators and members of the House of Representatives. There are 538 electors in total, so that it takes 270 to win. Based on the current counts in each of the states, Biden will receive 306 electoral votes and Trump will receive 232.
But that assumes that each elector follows the will of the state’s voters and votes in the Electoral College for his or her assigned candidate. Under the provisions of the Constitution standing alone, an elector can vote for whomever he or she chooses. To take a simple example, if all of California’s 55 electors switched and voted for Trump rather than Biden, then – all other things being equal – Trump would win in the Electoral College and remain president. Or if all 55 simply abstained (or picked another candidate), then the election would be decided by a vote of state delegations in the House Representatives (based on which party has majority control of the delegation), and Trump would presumably prevail because more than 25 delegations have Republican majorities.
In the minds of certain deeply committed Trump supporters, they merely need to persuade enough Biden electors to flip the Electoral College – 37 – that the election was fraudulent (which they regard as obviously true) and that Trump should be re-elected. But that is not going to happen, for two main reasons.
First, in 33 states and the District of Columbia, state law requires the electors to vote for the candidate for whom they were selected. The Supreme Court has upheld those laws. Those include 19 states (and the District of Columbia) that voted for Joe Biden. In total, 199 electoral college votes are already promised to Biden as a matter of law.
To be sure, a smaller subset of those states – 15, with 123 electoral votes – go further and impose a penalty or sanction if an elector violates the duty to vote for a particular presidential candidate. The Supreme Court specifically upheld these laws last term, in a ruling we extensively covered. So theoretically, an elector might cast an unlawful vote that nonetheless still counts in the Electoral College. But the likelihood of that happening is very low.
Second, and in any event, with respect to the remaining Biden electors who are not legally bound to vote for him, it is unimaginable that more than a handful – if that – would ever instead vote for Trump. Electors are not random citizens. They are generally hand-picked by the respective political parties: here, the Democratic Party. To take a prominent example, one elector from Georgia is Stacey Abrams. And carefully chosen Democrats are uniformly able to agree that Trump should not be re-elected.
The pre-selection of electors ironically explains the most recent important instance in which electors were “faithless” and did not vote for their pledged presidential candidate. In 2016, the state of Washington’s electors were pledged to vote for the losing candidate: Hillary Clinton. But four violated that pledge, three voting instead for Colin Powell, in a failed effort to get Trump-pledged electors from other states to do the same thing and strip Trump of his Electoral College majority.
In total, electors have voted consistently with their appointment more than 99% of the time. A total of roughly 35 electors have been “faithless” with respect to their obligation to vote for a living presidential candidate. That is fewer across all of American history than would have to be faithless to deprive Biden of his Electoral College victory.
In total, 10 electors were “faithless” in 2016, which was itself the most in a century. Seven of those changed votes were valid under state law. Prior to 2016 (and the maneuvering of pro-Clinton electors), the largest number of electors to defect from a live presidential candidate was six: electors for James Madison in 1808.
In sum, there is zero practical chance that Trump can be re-elected by changing the minds of Biden electors in the Electoral College.
Recommended Citation: Tom Goldstein, The Supreme Court, faithless electors, and Trump’s final, futile fight, SCOTUSblog (Nov. 28, 2020, 6:13 PM), https://www.scotusblog.com/2020/11/the-supreme-court-faithless-electors-and-trumps-final-futile-fight/