The Electoral College Quirk That Can Still Give Trump A Second Term
The presidential election is not over yet. And there is still a way for Trump to win a second term without breaking any laws, winning any lawsuits, or staging any coups. Constitutionally speaking, until the Electoral College votes on December 14th and congress certifies the votes on January 6th, the United States has not finished choosing its next president.
All it would take is for Donald Trump to convince or coerce 37 regular people into doing something that 7 people did for free in 2016.
To understand just how this scheme would work, we must return to 2016. After Trump won on November 8th, 2016, much of the country could not stop talking about just how strange his victory was. We were so focused on what happened in November that six weeks later on December 19th, we missed something even stranger. The Electoral College numbers in 2016 changed after we stopped paying attention.
In 2016, 7 of the 538 electors chose to become “faithless electors”. They voted for someone other than they were supposed to, someone other than their state voted for. The New York Times never updated their election map from 2016 because the Electoral College vote is viewed as a formality that doesn’t change the outcome.
To explain how this happened, and why it can lead to Donald Trump’s second term, we need to first learn a little more about the Electoral College. When most of us think about the Electoral College, we think of it like this:
- States award Electoral College votes, usually to the candidate who gets the most popular votes in that state.
- We add up all of these electoral votes from all of the states.
- Whoever gets the most electoral votes becomes president.
However, each of the above bullet points is incorrect. Here’s how it actually works:
- States designate “electors” rather than awarding votes directly. These electors are real people, each of whom gets one vote.
- Even though a delegate is “pledged” to a specific candidate, in most states the elector is free to vote for whomever they want, which is why the Electoral College total did not match the expected total in 2016.
- Most importantly, getting most of the votes is not enough. You must get 270 or more. If no candidate gets 270, the president is chosen by a special tiebreaker called a “Contingent Election”. Basically each state gets one vote in the House.
That last bullet point is the key. If neither Trump nor Biden get 270 votes in the Electoral College, the tiebreaker is not a regular vote in the House. Instead, the representatives from each state in the House determine a single vote as a group. So California with 45 Democrat Representatives and 7 Republicans gets one vote (Biden), and Alaska with 0 Democratic and 1 Republican Representatives gets 1 vote (Trump). Because Republicans have more representatives in 26 states, if neither candidate gets 270 votes in the Electoral College Donald Trump would almost certainly win re-election.
Right now Biden leads Trump 306 to 232 in the Electoral College “pledged delegates”. To lower Biden’s total to 269 requires 37 of Biden’s electors to become “faithless electors” and vote for anyone else except Biden. They can vote for Donald Trump, or Bernie Sanders, or anyone else, but if Trump convinces or coerces 37 of them do it, he wins a second term.
In a regular year, with regular candidates, being 37 bribes away from canceling out democracy would be a scary but unlikely thought. In 2020 of all years, with Donald Trump of all candidates, it is well within the realm of possibility.
How might Donald Trump pressure 37 people to change their vote?
Donald Trump is shameless enough to cheat on Melania, with a porn star, while Melania was pregnant with Barron, and then break election laws by paying the porn star to not talk about it. That’s the level of shamelessness we’re dealing with. There are very few things in the column of “Things Donald Trump is unlikely to do on principle.”
He could bribe people with money, pardons, government contracts, or positions of power in his government. He could threaten people with lawsuits or criminal prosecution, or hire investigators and hackers to find dirt on electors and then threaten to release it. He could hire people to pose as Bernie Sanders supporters who want votes for Bernie to help promote progressive values.
The Trump campaign has already spent half a billion dollars on trying to win the election. How much would he be willing to spend to steal it, or as he sees it, to take it back after the Democrats stole it from him?
Most people he approaches will not even realize how dangerous changing their vote could be, since Trump doesn’t need them to vote for him in order to win. Because this plan hinges on the strangeness of the Electoral College “Contingent Election” system that almost nobody has heard of, most people will not realize the true value of what they’re giving away. A vote for Bernie Sanders seems harmless, like it couldn’t possibly benefit Trump.
His fight against electors has already begun
What should really worry you is that the Trump campaign has already filed suit against the electors from Nevada.
While it’s concerning that Trump is targeting specific electors, Nevada is one of the rare states where electors can’t change their vote, which is why Trump can conduct that battle in the open. For the rest of the Biden electors, the campaign to switch votes would have to be conducted secretly because it only works if each elector thinks switching their vote is not important and the public doesn’t find out about it.
How do we defend democracy against this attack?
Regardless of what happens between now and December 14th, we should make sure that it’s impossible, both for Trump and any future candidates, to influence or change the votes of Electors. To do that, there are some simple things we can do:
- Share this quirk of the Electoral College with your friends and family. If nothing else, it’s a weird bit of US history that this is even possible.
- Look up the Biden electors in your state or a state nearby that Biden won. These lists are usually public. Where possible, contact an elector and ask if anyone’s asked them to change their vote. Make sure they know that voting for anyone else makes a Trump presidency much more likely.
- If you are in one of the states in the References below which does not have laws preventing faithless electors, contact your state representatives to enact the Uniform Faithful Presidential Electors Act to prevent faithless electors. This is the only real way to patch the hole in our democracy for good.
Regardless of whether any electors are convinced to switch their votes, it should still worry us that it is possible. Our democracy should not depend on the norm that electors vote for the candidate to whom they are pledged. Our democracy should rest on laws which enforce those norms. Until we can fix those laws, citizens have an obligation to understand how important these norms are, and to keep watch so that we know when they have been broken.
References
- Faithless Elector State Laws These states allow electors to choose whoever they want: AL, AK, CA, CT, DC, DE, FL, GA, HI, KS, KY, MD, MA, MS, NJ, NH, NM, NY, OH, OR, PA, TN, VT, VA, WI, WY, ID, ND, RI, SD, MO, LA, AR, TX, WV.
