It’s Not Over Yet: Trump’s Endgame Gambits

With the presidential election called for Joe Biden, a wave of relief, even jubilation, is sweeping over the seventy-five million or so Americans who voted to remove Donald Trump from office. But Trump will no doubt persist in his claims of fraud, and his functionaries have launched a host of lawsuits to challenge vote counts in states where he narrowly lost. It may be weeks before recounts are completed and longer still before all the legal battles are resolved. Having ignored or openly trampled most of the long traditions of his office, Trump is unlikely to follow the graceful examples of other one-term presidents and concede.

So before Democrats and Never-Trumpers move on to planning a particularly thankful Thanksgiving, they’d be well advised to consider the legal and quasi-legal gambits, beyond the obvious demands for recounts and likely fruitless claims of voting irregularities, that this most litigious and least conventional of presidents, and his adherents, might pursue between now and January 20.

Let’s assume for the sake of argument that Trump eventually wins all four of the states that, as of this writing, are either too close to call or will undergo recounts (Alaska, Arizona, Georgia, and North Carolina). This would add 45 electoral votes to his total, bringing him to 259 versus Joe Biden’s 279. Then all he needs is for ten electoral votes to switch from Joe’s column to his in order to deadlock the Electoral College at 269 apiece, or for ten votes to simply disappear from Joe’s total to deprive him of the needed 270. But how could that happen now that the election is over?

Trump’s first resort might be to invite state electors (who after all are human beings appointed by their states and not numbers on a map) to “stop the steal” and “vote their conscience” for him, ignoring the laws in most states that require that the state’s electors cast their Electoral College votes for the candidate who won a plurality of popular votes within their state. If enough of these so-called “faithless electors” could be induced to break ranks and vote for Trump, or simply not vote for Biden, an election that seemed decided could be thrown into doubt, or reversed. Such Trump stalwarts as Governor Ron DeSantis of Florida have already called for the states of Michigan and Pennsylvania to send faithless electors to the College.

But wouldn’t the faithless electors’ votes be illegal, and ignored? Not necessarily. The framers of the Constitution, elitist intellectuals that they were, didn’t trust the general rabble to select a president. Alexander Hamilton and James Madison, principal architects of the Electoral College, believed that the indirect mechanism of selecting electors who would then elect the president was necessary because those electors, as contrasted with the general populace, would have, in Hamilton’s words, “the information and discernment requisite to such complicated investigations.”

Over the years, some electors have had the temerity to take their role as seriously as the framers intended, and ignored their states’ popular mandates. In the 2016 election, there were 11 such faithless electors, seven who refused to vote for Trump though he had won the popular vote in their states, and four who balked at voting for Clinton though she had won in theirs.

But wait. Wasn’t the problem of faithless electors put to bed by a Supreme Court ruling last summer? Again, not necessarily. In fact, that case may have created more mischief than it resolved. The Court did rule that state laws permitting fining, removal, and/or replacement of faithless electors were constitutional. But only 33 states have faithless elector laws on their books, and only 15 of those go so far as to sanction or remove the votes of rogue electors. Four states that went for Biden (Maryland, Massachusetts, New Hampshire, and Vermont), representing a total of 28 electoral votes, have Republican executive branches that might be induced to look the other way if rogue votes popped up on their Electoral College slates, now that the Court has confirmed the states’ broad discretion regarding faithless electors.

While such shenanigans would lay bare the inherently anti-democratic nature of the Electoral College and make its ultimate demise much more likely, that would be cold comfort this December if the demonstrated will of the people were negated by rogue electors.

If a Trumpian appeal to faithless electors resulted in neither him nor Biden achieving the necessary 270 electoral vote majority, the Constitution says that the House of Representatives decides who shall be president, in what is called a “contingent election.”[1]

At first blush, given that Democrats have retained their majority in the House, a contingent election decided by that body would seem to be the last thing Trump supporters would want. But under the Twelfth Amendment to the Constitution, which lays out the rules for contingent elections, each state gets just one vote for the next president, and the candidate who receives a majority of the states’ votes, wins.

So in this not unprecedented scenario, the Democratic majority in the House becomes irrelevant, and the question becomes in how many state delegations to the House do Republicans outnumber Democrats? As a result of the election, the answer is 28 of the 50 states,[2] so assuming Republicans continue to exhibit their customary slavish fealty to Trump, he would have the majority needed to win a contingent election.

If the faithless elector gambit fails, Trump might pursue another: calling on Republican-controlled legislatures in states where voting was close (as in Pennsylvania) to intervene (on grounds of fraud or what have you) and substitute a slate of electors committed to Trump in place of those bound to vote for Biden. At least in the case of Pennsylvania, Republican leaders in the statehouse have publicly declared that this would contravene state law, but there may be less principled legislatures in other key states that might be swayed.

Finally, there’s the Electoral College vote count itself, which will happen in a joint session of the new Congress on January 6, presided over by none other than Mike Pence. The lack of Constitutional clarity around electoral vote counting led to the passage, in 1887, of the Electoral Count Act (ECA), whose baseline directive, distilled to its essence, is to count the electoral votes certified by a given state’s governor unless objections are formally raised to them in the joint session and both houses of Congress agree to reject them. Hence a divided Congress (as it will be unless Democrats win both of Georgia’s Senate runoffs this January) would be unable to prevent Pence from counting faithless or disputed electoral votes in a way that favored Trump and himself.

The constitutionality of the ECA has never been tested and is regarded by legal scholars as vulnerable to opportunistic dispute over whether and which states’ electoral slates have been appropriately submitted (“regularly given,” in the unhelpful language of the statute) and when a claim of fraud can disqualify electoral votes even when they are duly certified by a state governor (among many other issues). Trump’s legal team could pursue any of these avenues all the way, as he likes to say, to the Supreme Court, unless that body recused itself from judging such inherently political disputes.

In short, we’re not completely out of the woods just yet. The period from now to December 8, by which states must submit their electoral votes in order for them to be presumed valid, will likely tell the tale. Hopefully this is all just wonky political fantasy. Hopefully we won’t have to live through the national equivalent of that jump-scare final scene in “Carrie,” where Trump rises out of the political grave to grab us by the throat. Maybe none of the yet-to-be-called states will break his way, or he might have a seizure of decency, concede, and begin to plan his return to his natural habitat on reality TV.

But we have to assume that a graceful exit is the last thing on Donald Trump’s mind. Check your states’ voting laws for rules about faithless electors; it might not be too late to get one passed. Better yet, write your Republican representatives in your state and in Congress and tell them that you expect them to honor the principle they invoked so often during Trump’s impeachment trial — the one about the will of the people — and stand up for the integrity of our elections and the tradition of an orderly transfer of presidential power.


[1] This happened in the 1824 contest between John Quincy Adams and Andrew Jackson. Though Jackson won the majority of popular votes and a plurality of electoral votes, neither candidate won a majority of the electoral votes, and the House eventually chose Adams, who had not even won a plurality of the popular vote and was defeated by Jackson four years later.

[2] Post-election, in only 18 state delegations to the House do Democrats outnumber Republicans, and in four states (Arizona, Michigan, Minnesota and Pennsylvania) the House seats are evenly split.

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