One of the often misunderstood aspects of U.S. elections is how the popular vote relates to the election of the President. While, in the majority of the states, the ballot simply lists the candidates for President (along with the Vice-Presidential running mate), voters are effectively voting for a slate of electors. The winning slate in each state then assembles on the first Monday after the second Wednesday in December at the location and time designated by that state. After assembling, the electors for the state cast a vote for President and a vote for Vice-President. The votes are then counted, and the electors complete six certificates of vote recording the votes of the electors for that state. Each certificate of vote is paired with one of the previously completed certificates of ascertainment. Federal law then directs what happens with the six certificates of vote with one going to the President of the Senate (in practice, the clerk of the Senate), two to the national archives, two to the secretary of state of the individual state, and one to the federal district court for that state.
Normally, the meeting of the electoral college is a big ceremonial event. With Covid-19 and the potential for protests to get out of control, it appears that most of the states are planning on holding scaled-down events.
The fringe element of Trump supporters (and President Putin) are hoping for some last minute drama for Monday, but that is practically impossible for several reasons. First, earlier this year, the U.S. Supreme Court upheld state laws requiring electors to vote for the presidential candidate to whom they are pledged. While states have different laws on so-called faithless electors, the net effect of those laws is that sixty-nine Biden electors are from states that replace an elector and cancel the electors vote if the elector fails to follow through on their pledge, sixty are from states that fine the elector, seventy-one are from states with pledges but no enforcement provision, and one hundred six are from states with no law on this issue. That means that, at most, there are 237 Biden electors who could defect.
Second, electors are not randomly chosen people. In each state, the slate of potential electors are chosen by the state party — typically at the state convention (in those states that have state conventions as part of the delegate selection process) or by state committee. If Republicans think that they can convince Bill Clinton or Hillary Clinton (both serving as electors in New York) or Stacey Abrams (one of the Georgia electors) to vote for Donald Trump, I have some ancestral homeland that I am willing to sell them. So even in states that do not have any laws about faithless electors or no penalties or only a nominal fine, the odds of finding an “undecided” elector or a secret Trump supporter is practically non-existent. Putting aside the election of 1872, in which the losing candidate had died before the electoral college met, the ten faithless electors in 2016 was the largest number of faithless electors in the presidential vote since the adoption of the Twelfth Amendment. (You have had up to 30 faithless electors in the vice-presidential vote, but those were in the early days of the party system.) The odds of the Republicans finding thirty-seven electors willing to vote for somebody other than Joe Biden and Kamala Harris are practically non-existent.
The other potential source of drama are the never-ending legal cases filed by Trump, but most of those are essentially dead in the water. While requests for emergency involvement by the Supreme Court are pending in several cases, the Supreme Court has shown no inclination to grant any of them. Arizona, Nevada, Michigan, and Pennsylvania have no pending state cases as of this post. In Georgia, for reasons that make no legal sense, the Trump campaign actually objected to holding an emergency hearing this week. In Wisconsin, the state Supreme Court held oral argument on Trump’s election contest yesterday. I am expecting some ruling later today or first thing on Monday morning prior to the electors voting. I am dubious that the four Republican judges on the Wisconsin Supreme Court would set aside the result of the election. But even if they did, that would only be ten electoral votes which would not alter the ultimate outcome.
After tomorrow’s vote, Trump will really be down to one last stand. The joint session of Congress to count the vote will be on January 6, and it is possible for a Senator and a Representative to jointly object to the votes from an individual state. The Trump team are making some noises about that, but it requires at least one Senator to join in the objection. At this point, the two most likely candidates are conspiracy theorist Senator Ron Johnson representing President Putin and Wisconsin and Senator Rand Paul representing Kentucky.
