Electors will meet in all 50 states on Tuesday to ratify the second election of Donald Trump to the presidency, a process typically no more than a ceremonial step to the White House for the winner of an election.
Usually, it lacks drama. But four years ago on 20 December 2020, Republican activists met in seven states won by Joe Biden – Arizona, Georgia, Michigan, Nevada, New Mexico, Wisconsin and Pennsylvania – to sign false certificates of ascertainment proclaiming victory for Donald Trump and Mike Pence, to be sent to the National Archives and to Congress.
Prosecutors have described the intent behind this act of “fake electors” as the provision of a rationale for the vice-president to either declare Trump president or to throw the election to Congress to decide on 6 January 2021. On that day, rioters breached the US Capitol intent on subverting the results of the election.
The constitution states that on the first Tuesday following the second Wednesday of December after a presidential election, each state’s presidential electors gather in each state’s capitol to cast their vote in the electoral college for president and vice-president. The electoral college is an artifact of the politics of slavery; created at the insistence of southern states because it initially enhanced the voting power of states with larger enslaved populations due to the apportionment value of the three-fifths compromise.
The re-election of Trump in November by a decisive margin, coupled with the relative acceptance of the results by his political opponents, suggests no second wave of shenanigans on Tuesday.
Nonetheless, Congress tightened up language about how the process works after the January 6 insurrection, the latest of periodic adjustments to the 248-year-old tradition of the electoral college. The Electoral Count Reform Act clarified that the legislatures of states that use an election to choose a president cannot simply appoint electors after the fact if there is some kind of election “failure”.
The reforms require the executive of each state to certify an election at least six days before the electoral count, and that this certification is conclusive unless a state or federal court concludes otherwise. It limited the kind of objections members of Congress could make to the votes of electors. It also ensured that a mob with bad intentions could not change the outcome, by explicitly designating the vice-president’s role in counting votes as a ministerial, ceremonial act.
The one thing the 2022 reforms didn’t do is require states to hold a presidential election.
Stated in article II, section 1, clause 2 of the constitution: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress … ”
The US supreme court ruled in Bush v Gore that states do not actually have to hold an election at all, but if they do it has to conform with 14th amendment rules for equal protection.
The “manner” state legislatures have chosen in the past has included allowing voters to choose them by electoral district, or with legislators choosing themselves – as Connecticut, Delaware, Georgia, New Jersey and South Carolina did in the first presidential election.
Electors appointed to the college are obligated to vote for the winning candidate. Some vote for someone else anyway. It’s rare – fewer than 100 out of more than 14,000 people over the life of the country. The modern record is seven, set in 2016.
So-called faithless electors have never overturned an election, but dozens of electors have cast ballots for a candidate not of their party over the years. Thirty-three states and Washington DC have state laws prohibiting electors from casting ballots for someone other than the winner of the election. In 2016, four electors for Hillary Clinton in the state of Washington cast their votes for Colin Powell or Faith Spotted Eagle instead and were fined $1,000 for doing so.
Five states make the act of a faithless elector a crime; California law makes it a felony punishable by up to three years in prison to break ranks.
