Who chooses Electoral College voters, and can they break with a state’s popular vote?
Democratic nominee Joe Biden secured enough Electoral College votes on Saturday to become the next president of the United States.
President Donald Trump isn’t likely to concede, members of his campaign team have told the media. But does he still have a path to victory?
Conservative talk radio show host Mark R. Levin declared in an all-caps Tweet Wednesday that Republican state legislatures “have the final say over choosing the electors” and told them to to “do your constitutional duty.”
Twitter has since flagged the message — which was retweeted by Republican National Committee spokesperson Elizabeth Harrington and Donald Trump Jr. — as possibly misleading.
Levin was referring to the process of choosing the electors who make up the Electoral College, which is dictated by political parties in each state, according to the U.S. National Archives.
What the Constitution says
State political parties each choose a slate of electors ahead of the general election. Voters then select which electors will represent them in the Electoral College by casting their vote. The U.S. Constitution, however, does not required the electors “to vote according to the results of the popular vote in their States,” the National Archives states.
Those who break with the popular vote are known as “faithless electors.” That scenario doesn’t happen often.
“Electors generally hold a leadership position in their party or were chosen to recognize years of loyal service to the party,” according to the National Archives. “Throughout our history as a nation, more than 99% of electors have voted as pledged.”
The nation’s highest court has also checked electors’ ability to vote without consequence. In a unanimous decision in July based on court cases concerning state laws in Washington and Colorado, the U.S. Supreme Court held that states can punish or replace faithless electors.
Justices determined the State of Washington did have the constitutional authority fine electors $1,000 if they broke a pledge to support the candidate chosen by the popular vote, according to a report by the Congressional Research Service. They also found Colorado was permitted to remove an elector if they tried to vote for a candidate who did not win the state’s popular vote.
Plans to circumvent electors
In the lead up to the 2020 Election, the Trump campaign has been accused of plotting to appoint electors who would defy the popular vote in their given states and pledge support to the president instead.
A legal adviser for the campaign told The Atlantic it “would be framed in terms of protecting the people’s will.”
“Once committed to the position that the overtime count has been rigged, the adviser said, state lawmakers will want to judge for themselves what the voters intended,” The Atlantic reported. Those lawmakers could then put forward a slate of electors that “properly reflect” the voters’ will in their respective states, the adviser said.
When asked about the alleged plan, Deputy National Press Secretary Thea McDonald told The Atlantic that Trump wants a “trustworthy election” and “any argument otherwise is a conspiracy theory intended to muddy the waters.”
Louis E. Caldera, an adjunct professor at American University Washington College of Law and who served in the Clinton and Obama administrations, said people have spun out several possibilities of such “gamesmanship” in the aftermath of Election Day.
If the president successfully tied up election results in the courts of key battleground states, for example, state legislatures or governors could be called upon to appoint a new slate of electors — likely loyal to Trump — in time for the Electoral College vote on Dec. 14.
“It might be undemocratic — but they actually might be permitted by the Constitution,” Caldera told McClatchy News.
Is it plausible?
Political and legal experts have cast doubt on the president’s ability to successfully change the Electoral College.
The National Task Force on Election Crises — a bipartisan group of election law and voting rights experts, among others — published a report outlining legislators’ ability to appoint electors under the U.S. Constitution.
“Although the power to choose the manner in which electors are appointed means that state legislatures theoretically could reclaim the ability to appoint electors directly before Election Day, they may not substitute their judgment for the will of the people by directly appointing their preferred slate of electors after Election Day,” the report states.
According to the Lawfare Blog, the case law for such “uninhibited authority” isn’t clear.
The author of the blog post is Scott R. Anderson, a visiting fellow of governance studies at the Brookings Institution and a former government attorney. Anderson points to the Supreme Court decision in the 2000 presidential election between George W. Bush and Al Gore, in which the justices determined the right to vote is subject to equal protection and due process.
“These constitutional protections may substantially limit the ability of state legislatures to elevate their own preferences over those of constituents, particularly if there is no compelling public interest to justify such a move,” Anderson wrote.
Aside from the possible legal shortcomings, scholars say the political backlash would be swift.
“A president picked this way by state legislatures would likely have his legitimacy questioned — and the legislatures would also likely face the public’s ire,” wrote Austin Sarat, an associate dean and professor of law and political science at Amherst College, in an article for The Conversation.
This story was originally published November 7, 2020 at 9:00 AM with the headline "Who chooses Electoral College voters, and can they break with a state’s popular vote?."
