Why Trump’s latest Electoral College ploy is doomed to fail

By NICHOLAS RICCARDI

Electoral College elector Robin Smith, left, and others clap after casting their votes for President of the United States at the state Capitol, Monday, Dec. 14, 2020 in Lansing, Mich. (AP Photo/Carlos Osorio, Pool)

Even as President-elect Joe Biden’s victory was affirmed by the Electoral College on Monday, Republican electors supporting President Donald Trump met in a handful of battleground states won by Biden and tried to appoint themselves as “alternate electors” that could keep the president in office.

Would that deny Biden his presidency? In a word, no. The competing slates were just the latest effort by Trump and his allies to use the complex machinery of U.S. presidential elections to sow confusion and doubt about Biden’s victory.

Here’s an explanation of what really happened:

CAN THESE “ALTERNATE ELECTORS” CHANGE THE OUTCOME OF THE ELECTION?

Again, no. Biden won the election. Biden won more votes than Trump in 25 states and the District of Columbia, amassing a total of 306 electors. Those results have been certified, and the governor in each state signed off on a group of electors pledged to vote for the winner. That’s who voted Monday. The Republican “electors” were not designed by any state official and have no legal status yet.

The next step is on Jan. 6, when both chambers of Congress meet and accept the electors’ votes. A handful of Republicans in the House have already signaled they plan to object to this. They need to find a Republican senator to potentially force a vote in Congress.

But the existence of that alternative slate doesn’t change the facts in Washington — Democrats control the House and aren’t going to overturn Biden’s election by rejecting his electors. Trump quite simply doesn’t have the votes to change anything.

Even in the GOP-controlled Senate, enough Republican senators have signaled objections to Trump’s attempts to overturn the election to make it very unlikely that the chamber would select his alternate slate of “electors” over the Biden ones the battleground states are sending.

If, somehow, the Senate did vote for the rival electors, the deadlock wouldn’t necessarily help Trump. Federal law provides for electors appointed by a state’s governor to win any split decisions in Congress. The governors of all the contested states won by Biden, Democratic and Republican, appointed electors for Biden.

The existence of the rival slates does have a technical impact though — Congress will likely have to go through the motions of rejecting them, said Edward Foley, a law professor at Ohio State University.

“They’re dead on arrival and will be treated as frivolous and hardly worth the time of day,” Foley said.

Steven Vladeck, a law professor at the University of Texas, tweeted: “Don’t be distracted by these preposterous mock electoral votes—they don’t change how (asterisk)anything(asterisk) is going to unfold, since congressional Republicans could’ve objected (asterisk)without(asterisk) them. Either way, without a House majority, all Rs can do is slow the counting down on 1/6—not stop it.”

Vladeck added: “That doesn’t mean they’re not offensive; they are. But they don’t—and aren’t going to—change any of the legal calculus going forward.”

HAS ANYTHING LIKE THIS EVER HAPPENED BEFORE?

Yes, actually. In the 1960 election between John F. Kennedy and Richard Nixon, Hawaii’s Republican governor certified a Republican slate of electors after the initial count had Nixon winning the state by about 100 votes. But Democratic electors met anyway and insisted that Kennedy would win an ongoing recount.

The Democrats were right, and when it came time for Congress to consider which group of electors to count, it chose the Democratic one. It was Nixon himself, who was presiding over Congress as the outgoing vice president, who made the decision.

Pennsylvania’s alternate slate of Republican electors even cited the 1960 Hawaii case in a press release Monday, saying they were simply following Hawaii Democrats’ lead. “We took this procedural vote to preserve any legal claims that may be presented going forward,” said Bernie Comfort, Pennsylvania chair of the Trump campaign. “This was in no way an effort to usurp or contest the will of the Pennsylvania voters.”

Still, there’s an obvious difference — the outcome of the Hawaii election was actually unclear when the rival slates were appointed. Biden won Pennsylvania by 80,000 votes, and every court challenge the Trump campaign and its allies filed to contest has failed. Hawaii’s governor ended up sending both slates of electors to Congress. Pennsylvania’s governor is only sending Biden’s.

Under federal law, if there’s a tie between the two chambers of Congress, the slates sent by governors will be declared the winner. That’s the ultimate guarantee the pro-Trump slates will lose because none were endorsed by governors on Monday.

The other historical example is the election of 1876, where three states saw both parties submit rival slates of electors as having won their states. That chaos is what led to the federal law laying out the procedure for Congress to accept or reject rival slates of electors, which is what will lead to any “alternates” being rejected.

IF IT CAN’T WORK, WHY ARE TRUMP SUPPORTERS DOING THIS?

It’s unclear. Trump and his allies have spent the past several weeks pursuing legal challenges that have virtually no chance of succeeding. But as he loses at each step, Trump has succeeded in convincing many Republicans that the election was flawed and that he was robbed of a second term. He’s also raising millions of dollars. That money will likely keep coming in even if there’s no chance of his latest gambit working.