Election Law

SCOTUSblog co-founder sees 'zero practical chance' that 'faithless electors' will swing election for Trump

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Man standing in front of two arrows pointing opposite directions

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As court losses mount for President Donald Trump, his campaign may take another tack: Persuade presidential electors committed to President-elect Joe Biden to switch their votes to Trump.

Will it work? SCOTUSblog co-founder and Supreme Court litigator Tom Goldstein sees “zero practical chance” of it happening. He explained why in a Nov. 28 post at SCOTUSblog.

Goldstein started with a civics reminder. Under the Constitution, voters vote for “electors” who cast their votes for president in the Electoral College. To win the presidency, a candidate needs 270 electoral votes. In case of a tie, the decision on the president goes to the House of Representatives, with each state delegation getting one vote.

The current state count indicates that Biden has 306 electoral votes, and Trump has 232.

The Constitution does not require electors to vote for the winner of their state’s popular vote. But it is unlikely Trump and his allies could get enough Biden electors to switch their votes, according to Goldstein.

One reason: Laws in 33 states and the District of Columbia require electors to vote in favor of the candidate for whom they are pledged. Fifteen of those states impose penalties or sanctions if an elector violates their pledge. Laws penalizing “faithless electors” were upheld by the U.S. Supreme Court in July in cases involving Colorado and Washington.

Laws requiring electors to be faithful are on the books in 19 states that voted for Biden, along with the District of Columbia. That comes down to 199 electoral college votes that must be pledged to Biden.

Even if Biden electors are able to cast a vote for Trump, despite the laws, it is unlikely to happen, Goldstein said. Nor is it likely to happen in states where Biden electors aren’t legally bound to vote for him, according to Goldstein.

“Electors are not random citizens,” Goldstein wrote. “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 reelected.”

According to Goldstein, electors have voted for their pledged candidate more than 99% of the time. In raw numbers, the number of faithless electors “is fewer across all of American history than would have to be faithless to deprive Biden of his Electoral College victory,” Goldstein said.

“In sum, there is zero practical chance that Trump can be re-elected by changing the minds of Biden electors in the Electoral College,” Goldstein wrote.

Hat tip to How Appealing.

See also:

ABAJournal.com: “SCOTUS hears arguments on whether ‘faithless electors’ in the Electoral College can switch allegiances”

ABAJournal.com: “‘Faithless electors’ have right to vote for presidential candidates of their choice, 10th Circuit says”

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