Trump's Last Stand?

Electoral College Coup Revisited

On Wednesday, January 6, 2021, Congress will convene in a joint session to count the 2020 electoral votes. Joe Biden is expected to be formally affirmed as the next President of the United States, but will this be the “final act” of Donald Trump’s political theater?

Last month, Stephen Miller, White House advisor and the second coming of Joseph Gobbles, proposed that states with Republican legislators send “alternate state electors” to Congress and then have Congress certify the alternative slate. This idea seems to be partially inspired by the electoral debacle that emerged from the 1876 Presidential Election (Hayes vs Tilden) where conflicting electoral slates from 3 states were sent to Congress. However, as noted in the briefing by the National Task Force on Election Crises, this strategy would be a blatant violation of federal law:

Even if circumstances delay the final determination of the results of a state’s election beyond Election Day, a state legislature may not usurp the electoral process under the pretext of declaring a failed election. Absent a true election failure—something the country has not experienced in modern history—federal law requires states to appoint electors on Election Day.

The Stop-the-Steal S*** Show has now moved on to its next “performance”: trying to make electors from states that Joe Biden won magically disappear. 140 ride-or-die House Trumpublicans and at least 12 equally delusional Senators have pledged to contest the certification of electors during the joint session. There was also a failed lawsuit that tried to get the Electoral Count Act ruled unconstitutional and grant Mike Pence unilateral authority to disqualify electors. Now that the courts have affirmed that the Vice President doesn’t have dictatorial powers, once again, the electoral math, as I illustrated in a previous article, isn’t on Trump’s side.

First, to be elected by the electoral college, the Twelfth Amendment to the U.S. Constitution requires that a candidate receive "a majority of the whole number of Electors appointed" to become President. Electors were most recently disqualified in the elections of 1864 and 1872, which resulted in the threshold for a majority being lowered in both cases. With Trump having 232 electoral votes to Biden’s 306, Trump would need to have 75 electoral votes disqualified to win outright. Now, it is possible for Republicans to achieve such a feat by disqualifying the electors of Georgia, Arizona, Pennsylvania, Michigan, Wisconsin, and Nevada. It’s also possible that the earth will crash into the sun tomorrow.

However, Stephen A. Seigel, in his analysis of the Electoral Count Act of 1887 (ECA), notes the following:

Nevertheless, should Congress reject an electoral vote, the ECA does not address whether, or under what circumstances, the number of electoral votes required for the President’s election is reduced. To be elected President, the Constitution requires a candidate to receive “a majority of the whole number of Electors appointed.” The provision was adopted to prevent states from hamstringing the federal government by simply not participating in the presidential election. When Congress rejects an electoral vote, the effect that decision has on the denominator that determines whether a candidate has more than fifty percent of the electoral vote is an entirely open issue, and congressional precedent is split.

Siegel, Stephen A. (2004). "The Conscientious Congressman's Guide to the Electoral Count Act of 1887" (PDF). Florida Law Review. Vol. 56. p. 653.

If disqualifying electors doesn’t change the 270 vote threshold, then Trump’s task is far less daunting. To get Biden below the threshold, Trump would only need to disqualify… 37 electors! Then the election will be thrown into the House, where Republicans hold a majority of the state delegations, and Trump will be elected president! Piece of cake, right?

According to rules delineated in the Electoral Count Act, if a challenge to an elector or slate of electors is brought by at least one House member and one Senator, both chambers of Congress vote separately on whether to keep or reject the contested electors. It’s fair to say that the Democrat-controlled House will never vote to disqualify any of Biden’s electors. Part of the confusion fueling the wishful thinking of Trumpers is that while the House votes via state delegations to choose the President when there is no electoral majority, House members vote as individuals on electoral vote disputes. 

It’s harder to gauge the fate of such a challenge in the Senate, especially in light of the outstanding Georgia Senate races. It’s also doubtful that all the GOP Senators would be willing to play ball. But, let’s push this scenario to its limits and suppose the Senate votes to disqualify electors from the 6 states previously mentioned while the House votes to keep the electors. What happens next?

But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted. 

3 U.S. Code § 15

In this context, the “executive of the State” is the State’s Governor. While there is ambiguity surrounding the scope of the governor’s tie-breaking power, only 2 of the aforementioned 6 states have Republican Governors. Doug Ducey (AZ) and Brian Kemp (GA) haven’t shown any signs of caving to Trump’s insanity, but even if they did disqualify their states’ own electors, that’s not enough to deny Biden an electoral majority.

And, so, Trumpers in Congress will only succeed in delaying the inevitable. On Wednesday, January 6, 2021, Congress will certify Joe Biden’s victory and our Carnival-Barker-in-Chief will have to start looking for another venue for his political circus. Perhaps Trump’s post-election day shenanigans will help galvanize efforts to abolish or render insignificant the antiquated and undemocratic system known as the electoral college.

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