The Supreme Court docket, faithless electors, and Trump’s remaining, futile combat

Justices appoint Utah law professor to defend structure of Federal Housing Finance Agency

Posted on Sat, Nov 28th 2020, 6:13 pm by Tom Goldstein

Much has been written about the fact that there is essentially no chance the Supreme Court will intervene in any of the existing lawsuits in a way that will challenge Joe Biden’s victory. Once the court makes it clear it will stay out, supporters of President Donald Trump (and pro-Trump media and commentary) will likely turn their attention to one last hope: the electoral college. But that’s no real hope at all.

Start with a quick reminder about civics. The constitution provides that voters for the president in this country actually vote for “voters” who in turn vote for the president on the electoral college. All but two states assign all state voters to the winner of the state’s referendum. (The two remaining states of Maine and Nebraska will cast a portion of their votes based on the referendum winner in each state congressional district.)

Each state receives the same number of voters as senators and members of the House of Representatives. There are a total of 538 voters, so it takes 270 to win. Based on the latest numbers in each state, Biden got 306 votes and Trump got 232.

However, this assumes that every voter follows the will of the state’s voters and votes for his assigned candidate in the electoral college. According to the provisions of the Constitution, a voter alone can choose who he or she chooses. To take a simple example, if all 55 California voters switched and voted for Trump instead of Biden, Trump – all other things being equal – would win on the electoral college and stay president. Or if all 55 simply abstain (or choose a different candidate), the election would be decided by a vote of state delegations in the House of Representatives (based on which party has majority control over the delegation) and Trump would presumably prevail because more than 25 delegations have Republican majorities.

In the minds of some deeply committed Trump supporters, all they have to do is convince enough Biden voters to flip the electoral college – 37 – that the election was fraudulent (which they see as obviously true) and that Trump should be re-elected. However, this will not happen for two main reasons.

First, the law in 33 states and the District of Columbia requires voters to vote for the candidate they were selected for. The Supreme Court upheld these laws. This includes 19 states (and the District of Columbia) that voted for Joe Biden. In total, Biden has already received 199 votes for legal reasons.

Of course, a smaller subset of these states – 15 with 123 votes – go further, imposing a penalty or sanction if a voter violates the duty to vote for a particular presidential candidate. The Supreme Court has expressly upheld these laws in its last term, in a judgment that we have discussed at length. In theory, a voter could cast an illegal vote that still counts in the electoral college. However, the likelihood of this is very small.

Second, and in any case, with respect to the remaining Biden voters, who are not legally required to vote for him, it is inconceivable that more than a handful – if so – would ever vote for Trump instead. Voters are not random citizens. They are usually handpicked by the respective political parties: here by the Democratic Party. An elector from Georgia is Stacey Abrams. And carefully selected Democrats can unanimously agree that Trump should not be re-elected.

The voter pre-selection, ironically, explains the most recent major case in which voters were “loyal” and did not vote for their promised presidential candidate. In 2016, Washington state voters were promised to vote for the defeated candidate Hillary Clinton. But four broke that promise, three instead voted for Colin Powell, in order to get Trump-promised voters from other states to do the same and to deprive Trump of the majority of his electoral college.

Overall, voters voted consistently with their nomination in more than 99% of the cases. A total of around 35 voters were “loyal” to their obligation to vote for a living presidential candidate. That’s less in all of American history than it would take to be faithful to deprive Biden of his electoral college win.

A total of 10 voters were “faithless” in 2016, which itself was the highest figure in a century. Seven of these amended votes were valid under state law. Before 2016 (and the maneuvering of pro-Clinton voters), the greatest number of voters who turned away from a living presidential candidate was six: voters for James Madison in 1808.

Overall, there is no practical chance that Trump can be re-elected by changing the minds of Biden voters in the electoral college.

Posted in Chiafalo v. Washington, Featured, Election Disputes

Recommended citation:
Tom Goldstein, the Supreme Court, faithless voters and Trump’s last, futile fight,
SCOTUSblog (November 28, 2020, 6:13 pm),