President-elect Joe Biden’s win was confirmed yet again Monday, as the 538 members of the Electoral College cast their votes across every state and the District of Columbia — a fact that has led more conservatives to urge President Trump to concede.
There was little drama expected in how the day’s tallying would go; in the end, no elector went against their state’s popular vote.
States and districts accounting for 306 electoral votes have certified wins for Joe Biden — which means Democrats, chosen by state parties, were named the electors for those states. Meanwhile, states and districts with 232 electoral votes certified wins for President Trump and appointed Trump-supporting electors.
Yet the president seems to have other ideas. White House senior adviser Stephen Miller said on Fox Monday that Trump’s team planned to support an “alternate” set of electors in key states Biden won, which Trump is continuing to baselessly dispute.
“As we speak, today, an alternate slate of electors in the contested states is going to vote and we’re going to send those results up to Congress,” Miller said. “This will ensure that all of our legal remedies remain open.”
And Trump’s chosen electors did indeed meet in states including Georgia, Pennsylvania, Wisconsin, Nevada, and Michigan to cast their votes for Trump — though some involved tried to downplay the significance of this move, calling it merely a legal formality.
In fact, it’s a legally frivolous and baseless action. The legitimate and legally recognized electors in states Biden won have had their appointments certified by each state governor, in accordance with the vote totals in each state. The president’s “alternate” electors were acting with no legal authority whatsoever, apparently because Trump doesn’t want to acknowledge the election is over and that he’s lost.
The move is a preview of further shenanigans when Congress meets to count the electoral votes on January 6 — the final constitutional step before the winner is inaugurated. There, Trump allies plan to file challenges to the results in states Biden won. Yet those challenges will fail because Democrats will control the House.
So overall, any “alternate slate of electors” should mainly be understood as a stunt, to deceive Trump’s voters into thinking he still has a chance and keep the grift (and massive fundraising) that accompanies that deception going for another few weeks.
Any alternate electors would have no legal authority
Both before and after the 2020 election, nightmare scenarios were floated that focused on the possibility that multiple slates of electors could be sent from a state to Congress. For instance, in a swing state Biden won with a Republican-controlled legislature, the governor could send a slate of pro-Biden electors, but the legislature could (dubiously try to) send a slate of pro-Trump electors.
But that didn’t pan out. Despite Trump’s efforts to pressure GOP leaders in key states like Pennsylvania, Michigan, and Georgia, Biden’s wins were certified on schedule — and no state legislature tried to appoint Trump electors instead.
According to Miller, though, Trump’s team is trying to ignore this impediment by having Trump’s chosen electors in states Biden won meet on their own authority and cast their electoral votes for Trump, despite having no actual authority to do so. These electors would effectively just be some people, not the certified electors for states.
Efforts to do this took place in swing states like Georgia, Pennsylvania, Michigan, and Wisconsin. One would-be Trump elector in Georgia hyped the effort as “taking decisive action.” But another downplayed the effort to the Atlanta Journal-Constitution’s Greg Bluestein, saying that the idea was “basically, checking legal boxes, if something should come of the lawsuits.”
The Trump campaign’s Pennsylvania chair also argued in a statement that “this was in no way an effort to contest the will of the Pennsylvania voters,” and that their elector-naming was merely “conditional” and meant to “preserve any legal claims that may be presented going forward.” (They pointed toward Hawaii’s close presidential election in 1960 as a precedent, though it has little relevance for the current situation.)
Miller optimistically suggested three main ways this alternate slate of electors could end up becoming the real electors.
First, he said, the courts could send their votes to Congress, “if we win these cases.” This seems quite unlikely, as Trump and his allies’ efforts to overturn the results of states in the courts have been uniformly rejected so far, at both the state court and US Supreme Court levels.
Second, Miller said, “the state legislatures in Georgia, Wisconsin, Pennsylvania, can do the same,” suggesting Trump will keep trying to pressure GOP-controlled state legislatures to somehow reject the electors that will, after today, already have been approved in their states, and replace them with the president’s. Legislature leaders in these states have refused to do this thus far, often claiming they have no such authority to do so under state law.
Third, Miller said they plan to “send those results up to Congress,” and that “Congress has that opportunity as well to do the right thing.” This effort is also doomed, and we’ll explore why that is below.
This sets up more stunts for when Congress counts the electoral votes in January
On January 6, 2021, a joint session of the newly elected Congress will convene to count the votes cast by the Electoral College. This congressional count is the final formal step in making the presidential election results official before the inauguration itself.
The 12th Amendment to the Constitution says that Congress — led by Vice President Mike Pence, in his role as president of the Senate — is supposed to “open all the certificates” of electoral votes sent by states, and “the votes shall then be counted.”
Eventually, Congress became an arena for resolving disputes over the presidential election’s outcome — particularly in the infamously disputed election of 1876. Subsequently, Congress passed the Electoral Count Act to try to shift more responsibility for settling results to the states, but it also set up a procedure by which members of Congress could challenge results in particular states.
Under this process, if at least one House member and one senator object to the results in any state, each chamber will hold a vote on the matter. For the objection to succeed, both the House and the Senate must vote in favor of it. Otherwise, it fails. (And since Democrats will control the new House, any objection to Biden’s win will surely fail in that chamber. Failure in the Senate is also a strong possibility, since several Republican senators have acknowledged that Biden won.)
The nightmare scenarios for a post-election dispute — like this one written last year by Ned Foley, a law professor at Ohio State University — often focused on how Congress might settle things if they got two slates of electors from a contested state, one certified by the governor and one by the state legislature. Which elector slate would be the “default” one? Would Pence end up making the final call? If he did so, and Congress was divided, who could stop him? There are various messy possibilities as to how this could play out.
But that’s not the situation that’s unfolding. For the 2020 election, every governor has certified a result, and no state legislature has disputed that result.
So maybe the Trump campaign will try to “send” their own results up to Congress somehow, as Miller claimed. But under the Electoral Count Act (which deals with the scenario where “more than one return or paper purporting to be a return from a State shall have been received”), it’s difficult to see how the alternate results could possibly be counted, unless Republicans decide to unilaterally declare they won’t follow this provision of the Electoral Count Act because they believe it to be unconstitutional, or something.
The person who will truly be in an awkward position on January 6 is Vice President Pence. He’s of course not the first veep to preside over the tense election of the opposing party’s candidate — Vice President Biden did it for Trump in 2016, and Vice President Al Gore did it for his own opponent in 2000.
But both Hillary Clinton and Gore had conceded by then. If Trump hasn’t yet conceded, he and his allies will likely try to pressure Pence to somehow interfere with the congressional counting process, even though Pence’s role is widely understood as mostly ceremonial.
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