Can Trump Try to Steal the Electoral College? Here’s How

Thursday, October 29, 2020
Trump and Barrett Unmasked (photo: Brendan Smialowski, AFP via Getty Images))

Can the Republican governors and legislatures of battleground states, with the help of the Supreme Court, reverse what appear to be victories for Joe Biden? Can they declare parts of the results “fraudulent,” and give their states Electoral College votes to Donald Trump?



First, a bit of background. In all other legitimate democracies, whoever earns the most votes wins the election. But, as we have seen in two of the last five presidential elections, that is not how it works in the United States. The Electoral College system assigns each state a number of Electoral College votes based on how many members of Congress the state has (two Senators plus the number of members in the House of Representatives). So what is commonly thought of as a national election is actually 51 separate elections. In all but Nebraska and Maine, these elections are winner-take-all.


Presumably, whichever candidate wins the most votes in a state, gains its electoral votes. The United States Constitution, which was written before the introduction of popular votes, only says ”Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” (Section 1, Clause 2) By the end of the nineteenth century, all states had shifted the choice of electors from state legislatures to popular vote. However, there are loopholes.


There are six battleground states in which both the state legislature and the governorship are controlled by Republicans: Texas, Florida, Ohio, Georgia, Arizona and Iowa.



Let’s take a look at a possible scenario in Florida. Let’s say that when all the votes are counted, it looks like Joe Biden has won the state. The governor of Florida, Ron DeSantis, a devoted Trump supporter, claims that in certain counties there are credible accusations of fraud. He has Florida Secretary of State Laurel M. Lee conduct an investigation and announce that, sure enough, many Biden votes were illegal and Trump really won the most votes. Despite the original vote total, DeSantis certifies the Trump electors instead of the Biden ones. The Democrats immediately find a Democratic Florida official to submit the list of Democratic electors. Who decides which set of electors becomes the official one? In theory, it’s probably Congress, the lame duck one until January 3, 2021, or the newly-elected one sworn in on January 3, three days before Congress approves the results of the Electoral College.


However, according to Constitutional scholar Edward B. Foley, the Supreme Court could intervene, for example, before the Electoral College meets on December 14 to order a state to not count ballots received after November 3. Or, between December 14 and January 6, the Supreme Court could reject a Democratic challenge in a state it appeared to win, citing various justifications.



Now, a quick look at another state: Georgia. If you think that these scenarios are far-fetched, keep in mind what happened in Georgia in 2018. The Republican candidate for governor was Brian Kemp, who happened to be the Secretary of State in charge of overseeing the election in which he was a candidate. Miraculously, despite allegations of voter suppression, Kemp defeated Democrat Stacey Abrams by 1.4% of the vote. As for the 2020 presidential election, the Georgia code simply states that “The Governor shall enumerate and ascertain the number of votes for each person so voted and shall certify the slates of presidential electors receiving the highest number of votes.” If it appears that Biden has won the state of Georgia, it is still the governor’s decision to decide which set of electors to certify. And, again, the Supreme Court could intervene.


States with Democratic Governors and Republican Legislatures

There are three other states worth mentioning because they have Democratic governors and Republican legislatures. They are Pennsylvania, North Carolina and Wisconsin.


The 2000 Bush v. Gore 5-4 Supreme Court decision that gave the presidency to Republican George W. Bush, cites the 1892 case of McPherson v. Blacker: “the state legislature's power to select the manner for appointing electors is plenary [absolute]; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution.” And state legislatures can “take back the power to appoint electors.”


In fact, in the Supreme Court’s decision in Democratic National Committee v. Wisconsin State Legislature, which was released on October 26, 2020, Justice Neil Gorsuch (a Trump appointee) wrote, “The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules.”


Imagine that Biden appears to win one or more of these states. The Democratic governors certify the Biden electors. But the Republican-controlled legislatures claim fraud and certify the Trump electors. Although most students of the Constitution argue that such a dispute would be decided by Congress, it is not beyond reason to imagine that a politicized Republican Supreme Court would step in…and follow Gorsuch’s argument that state legislatures take precedent over governors.



When I consulted Constitutional scholar Richard Pildes about my speculations, he referred to them as my “fantasizing.” But then he corrected himself. “If I may invent a new word,” he said,  “you’re ‘nightmarizing.’”


Maybe so, but we are dealing with a president who has said that the only way he can lose is through fraud and a Republican Senate that rushed through a Supreme Court confirmation eight days before a presidential election. In Donald Trump’s words, “I think this will end up in the Supreme Court….And I think it’s very important that we have nine justices.”

-David Wallechinsky


To Learn More:

The Election That Could Break America (by Barton Gellman, The Atlantic)

Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management (by Edward B. Foley, Loyola University Law Journal)

Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress (by Elizabeth Rybicki, L. Paige Whitaker and Jack Maskell, Congressional Research Service)


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