Faithless electors: Another Trump Hail Mary?

This election has made many of us aware of the minutiae of US election processes and the series of dates that lead up to the results of the presidential election becoming official. One major date is December 14th which is when the people who were elected on November 3rd to serve as Electoral College voters meet in their respective states to cast their votes for president and vice-president. That is what is meant by the Electoral College meeting. But while much attention has focused on that date, today saw the so-called ‘safe harbor’ deadline when each state has to certify its election results, resolve any controversies about who the electors are, and submit their names, thus ending any unresolved issues. Enough states have done so for Biden to get over 270 electoral college votes and those electors are thus fixed, making the December 14th vote mostly a formality.

In Michigan, even though each county and the state as a whole had certified the election, six Trump electors petitioned the court at the last minute to invalidate and decertify those results and declare Trump to be the winner so that they would be the electors who vote in the Electoral College. In dismissing this petition, the opinion of US District Court judge Linda V. Parker was brutal, saying that it was far too late to bring such a suit, even if it had any merit, which she felt it did not have.

This case represents well the phrase: “this ship has sailed.” The time has passed to provide most of the relief Plaintiffs request in their Amended Complaint; the remaining relief is beyond the power of any court. For those reasons, this matter is moot.

In their prayer for relief, Plaintiffs ask the Court to: (a) order Defendants to decertify the results of the election; (b) enjoin Secretary Benson and Governor Whitmer from transmitting the certified election results to the Electoral College; (c) order Defendants “to transmit certified election results that state that President Donald Trump is the winner of the election”; (d) impound all voting machines and software in Michigan for expert inspection; (e) order that no votes received or tabulated by machines not certified as required by federal and state law be counted; and, (f) enter a declaratory judgment that mail-in and absentee ballot fraud must be remedied with a manual recount or statistically valid sampling. What relief the Court could grant Plaintiffs is no longer available.

Before this lawsuit was filed, all 83 counties in Michigan had finished canvassing their results for all elections and reported their results for state office races to the Secretary of State and the Michigan Board of State Canvassers in accordance with Michigan law. See Mich. Comp. Laws § 168.843. The State Board had certified the results of the 2020 General Election and Governor Whitmer had submitted the slate of Presidential Electors to the Archivists.

The Michigan Election Code sets forth detailed procedures for challenging an election, including deadlines for doing so. Plaintiffs did not avail themselves of the remedies established by the Michigan legislature. The deadline for them to do so has passed. Any avenue for this Court to provide meaningful relief has been foreclosed.

And as one Justice of the Supreme Court of Pennsylvania advised in another 2020 post-election lawsuit: “there is no basis in law by which the courts may grant Petitioners’ request to ignore the results of an election and recommit the choice to the General Assembly to substitute its preferred slate of electors for the one chosen by a majority of Pennsylvania’s voters.”

Perhaps I should mention that this lawsuit was brought by ace lawyer Sidney Powell, of the Hugo Chavez-CIA-Dominion Voting Systems-kraken conspiracy fame. She has also filed an appeal of the verdict against her in the Georgia lawsuit. It should be noted that Trump’s lawyer Jenna Ellis has been reported today to have tested positive for covid-19 after attending a White House holiday party without a mask. Since Trump’s other lawyer Rudy Giuliani has also tested positive, that leaves just Powell of the original triumvirate to carry on, even if Trump fired her. But we believe you and your kraken can do it so keep fighting, Sidney! Just don’t attend any White House parties because Trump seems determined to infect every damn person who works in that building.

So now what? As far as I can see, the only option that is left is for people who want Trump to remain as president to coax, pressure, bribe, intimidate, or threaten 38 Biden Electoral College voters to switch and vote for Trump on December 14 so that the margin swings from 306-232 in Biden’s favor to 270-268 in Trump’s favor. This would make them the so-called ‘faithless electors’ who vote for someone other than the person they were elected to vote for.

So can this be done? The answer is almost certainly no. Even if the Trump camp could persuade 38 voters to switch, it would be immediately challenged and it is unlikely that the courts would uphold their decision.

The Constitution and federal law are silent on the matter, but some states have passed laws that require their electors to vote as pledged. In July, the Supreme Court ruled in favor of these laws.

“The Constitution’s text and the nation’s history both support allowing a state to enforce an elector’s pledge to support his party’s nominee – and the state voters’ choice – for president,” Associate Justice Elena Kagan wrote in an opinion.

During the last oral argument of the court’s term in May, justices on both sides of the ideological aisle expressed concern that electors could be bribed, particularly by the losing party in a close election.

“The Supreme Court made it clear that the elector is not there to vote his or her conscience. The elector is there to vote how the state dictates,” said Erwin Chemerinsky, dean of the University of California-Berkeley Law School. “Most states now forbid faithless electors.”

Trying to switch votes like this would be a truly desperate move on the part of the Trump campaign but we know that they are shameless and willing to stoop to anything. It will be interesting to hear from Biden electoral college voters if any such overtures or threats are being made to them.

If such a move is tried and failed, then the final attempt might be to try and prevent Congress from accepting the December 14th vote when it meets on January 6, 2021, an even more futile strategy.


  1. flex says

    While I agree that 36 electors are unlikely to switch, there are enough states without faithless elector laws (which were also won by Biden) to surpass that number. Two of those states are Pennsylvania and Georgia. Also New York and Illinois have no laws to prevent faithless electors, not even a fine.

    The USSC agreed that the state laws are constitutional, but only 14 states void a faithless elector’s vote. Many have no laws at all, or the law makes it legal for them to change their vote, or accepts their vote while imposing a small fine (typically $1,000).

    Again, I don’t think it’s at all likely to happen, but there are plenty of electors who could switch their votes and still have them counted. There are two factors which I think protect us here. First, electors are typically chosen as a reward for party allegiance, becoming a faithless elector will not only kick a person out of their party, but also out of a social network they have invested a huge amount of time in. Second, the incredible partisan nature of our society at the moment has a lot of down sides, but does tend to keep an elector from switching their vote. A faithless elector would have to cast a vote for someone they hate, and I don’t think that’s likely to happen.

  2. Pierce R. Butler says

    … the only option that is left is for people who want Trump to remain as president to coax, pressure, bribe, intimidate, or threaten 38 Biden Electoral College voters to switch …

    You left out kidnapping or killing Electors and donning disguises to take their places. And/or various technologies for remote mind control.

    Perhaps Rudy ‘n’ Jenna have reached sufficient states of delirium to invent further stratagems.

  3. flexilis says

    I would just love to see some Trump elector who has developed a spine switch to Biden as a protest. I don’t predict it will happen, but I hope there are a few Republicans who are disgusted enough with the last four years, and especially with the current tantrums and blatant sedition of our institutions, to consider making such a gesture. It would take a great deal of personal bravery. Perhaps there is some elector out there who has lost a loved one to the Trump virus and would like some revenge.

  4. consciousness razor says

    As far as I can see, the only option that is left is for people who want Trump to remain as president to coax, pressure, bribe, intimidate, or threaten 38 Biden Electoral College voters to switch and vote for Trump on December 14 so that the margin swings from 306-232 in Biden’s favor to 270-268 in Trump’s favor.

    Actually, they’d only need to get a tie (269-269). Then each state delegation (not individual representatives) in the House would get to vote on the president — that is, based on the incoming (117th) Congress, not the current one which ends on January 3rd.

    If I counted correctly, Republicans will have a majority of the seats in 27 states, Democrats in 20 states, and the parties are equally split in 3 states. (No clue how a state would decide on which candidate to support in the states where neither party has a majority…. Maybe they just wouldn’t, meaning such states would simply fail to cast a vote).

    So, if it came to that (but of course it won’t), Republicans would have most of the votes.

  5. consciousness razor says

    For those interested, the three states with equal numbers of Ds and Rs in the House: Michigan (7 each), Minnesota (4 each), and Pennsylvania (9 each). What is there to do, flip a coin? More likely, it would be some kind of backroom deal that nobody will ever hear about. It would make more sense to just look at the scoreboard and decide that vote’s not going to make a difference anyway, but they really do seem to like their backroom deals much more than anything else.

  6. TGAP Dad says

    The only part of this that makes me dread the days ahead is the almost qualifier of your not-quite-reassuring statement that ‘this can almost certainly not be done”. And of course this will all serve to stretch out Trump’s superspreader bilkathons, and every news camera will remain trained on him until he goes off to Mar a Lago to pout.

  7. Owlmirror says

    Last presidential election, there was a faithless electoral reaction, and while there were dropouts and replacements, two Republican electors did in fact vote for someone other than Trump. Several Democratic electors voted for someone other than Clinton, although a few of those were replaced/invalidated.

    The Washington state Democratic faithless electors were fined, which led to the recent Supreme Court ruling that yes, state governments can set what happens to faithless electors.

    Will any Democratic-appointed elector not vote for Biden this time around? I suspect not -- I think getting Trump out will trump (heh) any qualms they have. But we’ll find out!

    Will any Republican electors not vote for Trump? One can only hope.

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