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Everything You Need To Know About “Faithless Electors” and How They Could Hand President Trump The Win (it’s happened before!)


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Have you heard about “faithless electors”?

You probably have, but do you know how they work?

The most basic way to explain it is the people who actually vote in the Electoral College vote are not legally bound to vote the same way as the popular vote in that state.

In other words, if they think the vote was wrong or should not be followed through in some way, they have the legal right to vote however they want.

So if they feel the fraud has been proven, they have a legal right — if not a duty — to vote their conscience and they could absolutely vote for Donald Trump!

Take a look:

From the NY Post:

Remember “faithless electors” — those almost mythical rogues who Hillary Clinton fans once desperately hoped could save them from a victorious Donald Trump four years ago?

Well, there is still such a thing as faithless electors, they are still an incredible longshot, and Trump fans too can now place the very slimmest of hopes in them.

So what are faithless electors again?

As a refresher, when we fill in those ballot ovals to select a president, we are actually selecting a slate of “electors,” human beings who are bound to vote for a particular party’s candidate when they meet next month in their respective state capitals.

For example, the president won Florida’s 29 electoral votes on Tuesday night after a majority of voters there, more than 5.6 million people, filled in the oval for President Donald Trump and Vice President Mike Pence.

But those millions of Floridians were actually voting for their state’s Republican “electors” — 29 party loyalists chosen by their state GOP leaders.

“When a voter casts a vote for a candidate for President of the United States, s/he is in actuality casting a vote for the presidential electors who were selected by that candidate’s party,” as the National Conference of State Legislatures explains.

All 29 of Florida’s electors are bound to vote for Trump and Pence — and will head to Florida’s statehouse and cast their pledged vote for the GOP ticket on Dec. 14.

The same scenario will play out across the country — in New York, for instance, which also has 29 Electoral College votes and which was easily won by Joe Biden and Kamala Harris.

As in Florida, on Dec. 14, New York’s 29 electors — loyalists chosen by state Democratic leaders — will dutifully report to Albany. They’ll cast their votes for Biden-Harris.

As a formality, Congress will then meet in joint session on Jan. 6 for the official tally of the Electoral College votes.

That’s what is supposed to happen — and what almost always does, without a hitch or surprise.

But that’s where “faithless electors” could come in — rogues who vote for someone else, or who abstain entirely.

It’s happened 85 times in America’s history, according to Fairvote.org, which advocates for the abolishment of the Electoral College.

That number includes three electors who abstained. “The other 82 Electoral votes were changed on the personal initiative of the Elector,” Fairvote.org says.

Most of the faithlessness happened long ago, including a mass defection in 1836, for example, when 23 Virginia electors revolted.

But it has happened as recently as 2016, when 10 electors went rogue — and seven of those votes actually stuck.

Trump lost two electoral votes that year. But Clinton lost five — in any event not enough to alter what happened at the polls, as Fortune.com notes.

It happened again in 2004, when one Minnesota elector declined to vote, as pledged, for Democrat John Kerry and instead voted for Kerry’s running mate, John Edwards.

That bit of lone roguishness had also no bearing on the election, as the incumbent Republican president, George W. Bush, had already handily won.

Most states — 32 — have laws on the books governing faithless electors, typically allowing the rogue’s removal and replacement, plus a low fine.

But a unanimous Supreme Court ruling from July stiffened the rights of states to replace rogues who refuse to cast their votes for the presidential candidate they are pledged to support, NPR.org reported then.

The court’s decision “is so strong that it would seem to allow states to remove faithless electors even without a state law,” NPR reported of the ruling.

The Supreme Court was acting in response to the 2016 rogue rebellion — but also looking ahead.

The possibility of overturning an Electoral College victory by faithless electors “changing just a few votes” would lead to chaos, Justice Samuel Alito wrote.

It would “prompt the losing party … to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be.

From the Washington Times:

Last month’s election turns out to have been the pre-season.

The real election for president is set for Monday, when groups large and small will gather in state capitals across the country and cast their votes as part of the Electoral College, effectively appointing the next chief executive.

The outcome is not in doubt.

According to the results certified in each state, Democrat Joseph R. Biden won 25 states and the District of Columbia and earned 306 electoral votes. President Trump won 25 states, too, but his are more sparsely populated and earned just 232 electoral votes.

The electors themselves were chosen by the parties earlier in the year, in many cases well before Democrats even knew Mr. Biden and his running mate, Kamala D. Harris, would be their nominees.

The system of electors was created by the Constitution’s Article II and solidified in the 12th and 23rd Amendments — though the term Electoral College doesn’t actually appear in the founding document.

Using electors was a compromise between selecting the president by direct popular election, by a vote of state legislatures, or by Congress. As the founders envisioned it, the average voter might not know enough to make an informed decision about national candidates, but he could select local leaders who would be capable.

Thus when voters went to the polls last month, they were actually casting ballots for a slate of electors.

Since Mr. Biden won Virginia, his electors will be the ones voting for president in that state on Monday. Mr. Trump, meanwhile, won North Carolina, so his electors will be the ones voting there.

“It is a very convoluted process that has evolved over time and is something quite different from what the Founders envisioned,” said Rebecca Green, a professor and co-director of the Election Law Program at William & Mary Law School. “When you look at the certification of the vote, the safe harbor, and the Electoral College, these are all just one more step by which the results become more and more finalized.”

Electors cannot be federal elected officials or anyone holding “an office of trust or profit under the United States,” but can be most anyone else the party chooses. The Congressional Research Service said they turn out to be “a mixture of state and local elected officials, party activists, celebrities and ordinary citizens.”

“With the electors you’ll see a lot of variation,” said Louis Gurvich, chairman of the Louisiana GOP, which picked its electors by caucus in February. “It’s not an election, but you can put it around, quietly, that you’d be interested in being an elector. It’s something you can put on your political resume.”

Generally, the electors gather in their state capitols and hold two votes: one for president, another for vice president. The only change that COVID appears to have made is moving the votes to a bigger room.

Every state has a winner-take-all approach to electors, save for Maine and Nebraska, which dole out two electors to the statewide winner, but then award the other electors — two in the case of Maine, three in Nebraska — based on the victor in each congressional district.

In this year, as has happened more often in recent years, both of those states will split their electoral votes, with Mr. Trump winning one of Maine’s four votes and Mr. Biden collecting one of Nebraska’s five votes.

The Hill has a more negative view:

Although The Hill admits it has happened before, they cast doubt on Trump’s chances (have you noticed how far-left The Hill has become?  I have.):

Donald Trump’s options continue to narrow. The president lost the Electoral College vote to Joe Biden, 306 to 232. Trump has sought, unsuccessfully, to delay certification in states that Biden narrowly won, including Michigan, Georgia, Arizona and Pennsylvania. His legal team’s allegations of voter fraud have not fared any better, failing to produce evidence that meets a legal standard.

Now time itself no longer is on the president’s side, either. The 538 Electoral College electors will gather in their states and cast their ballots on Dec. 14, the penultimate step before Congress finalizes the count on Jan. 6, 2021.

So what might the president still do? Given that Trump seems disinterested in any traditional concession — and that many of his media allies and supporters are invested in struggling on, no matter the odds — one of his few remaining strategies might be an appeal for electors to “turn rogue” and support him, even if they are pledged to Biden. For many reasons, however, this is not a promising path for the president, either.

A quick civics refresher: As Tom Goldstein reported on SCOTUSblog, Remember that when we vote for president, we are not actually voting for the candidate we prefer, but rather for a slate of electors. Almost every state — except for Maine and Nebraska, which allocate a single elector via winning the popular vote in a congressional district — awards every elector to the statewide popular vote victor. The U.S. Constitution provides latitude to individual electors to cast their ballot for the person of their choosing.

On paper, that’s where it could get interesting. Biden’s lead in the popular vote is approaching 7 million. Nevertheless, under the rules of the game, Trump’s campaign would need to convince 37 electors pledged to Biden to vote for Trump instead, rather than the winner of their state’s popular vote, in order to tie the Electoral College and pitch the election into the U.S. House. It’s the longest of long shots.

First, 33 states and the District of Columbia require electors to vote for the candidate to which they are pledged. Nineteen of those states, as well as Washington, D.C., went for Biden — which means that 199 electors of the 270 are pledged by law to the former vice president. While many states do not provide a penalty for a “faithless elector,” 14 states do allow for the vote to be canceled and the immediate replacement of the elector. The U.S. Supreme Court upheld the constitutionality of those laws this summer in a case called Chiafalo v Washington.

Trump, then, faces a shrinking pool. He would need 37 of the remaining 106 Biden electors to switch sides. History shows how unlikely this would be. Faithless electors, after all, never have changed the outcome of a presidential election. More than that, so far, only one elector in the nation’s history has ever cast a vote for the opposite party’s nominee instead of his or her own in a close race. For that, you need to go all the way back to 1796, the very first contested presidential election, when Samuel Miles, a Federalist from Pennsylvania, voted for Thomas Jefferson rather than his own party’s candidate, John Adams.

Indeed, there have been a total of 23,507 electoral votes cast across 58 presidential elections. Only 90 of them have been cast as “deviant” votes. And 63 of those were cast for another candidate because of the death of a losing candidate — Horace Greeley, in 1872 — between the November election and the Electoral College gathering.



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