Electoral Reform
Fake electors scheme underscores need to reform presidential election process
Electoral College problems on display in latest Trump indictment
On August 1, 2023 former former President Donald Trump was indicted by a grand jury in Federal District Court in Washington, D.C. on four separate counts. According to the indictment, the counts accuse Trump of the following:
- Defrauding the United States
- Obstructing an official government proceeding (the certification of the Electoral College vote);
- Depriving Americans of a civil right (to have their votes counted);
- Attempting to obstruct an official proceeding.
Many of these allegations have been known since the airing of the January 6th Select Committee’s proceedings and the issuance of their final report. Nevertheless, this indictment builds on the evidence presented in those proceedings and highlights the fragility of our democratic institutions and how easily the Electoral College could be compromised. The indictment explicitly acknowledges this problem. It reads, “Each of these conspiracies — which build on the widespread mistrust the defendant was creating through pervasive and destabilizing lies about election fraud — targeted a bedrock function of the United States government: the nation’s process of collecting, counting and certifying results of the presidential election”
How the Electoral College is Supposed to Work
This latest indictment is indeed focused on the process surrounding the certifying of presidential election results. In fact, it centers around the members of the Electoral College — the official body that elects the president.
The Electoral College is made up of electors from the various states, selected by a method determined by each state’s legislative body, that cast their official presidential ballots roughly six weeks after the presidential election. This official process requires electors to travel to their respective state Capitol on the Monday after the second Wednesday in December in order to cast their official presidential ballots. The electors chosen to travel to their state Capitol are determined by the popular vote result in that state on election day.
So, if the Democratic candidate wins the state’s popular vote on election day, the Democratic slate of electors is tasked with casting the official electoral vote for President. If there are any disputes over a state’s popular vote total, those disputes must be resolved at least six days prior to the meeting of the electors. This has become known as the “safe harbor” date. So, if any legal challenges were going to be levied against a state or any recount were to be requested, they would need to be settled prior to the safe harbor date.
Efforts to Undermine Election Results
According to the indictment handed down against Trump on August 1, all four of the counts revolve around this elector process. In 2020, the presidential election came down to a number of battleground states — as many of our modern presidential elections do. These states included Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin among a few others.
It is these states, however, that Biden ended up winning by fairly slim margins (e.g. 0.31% in Arizona, 0.23% in Georgia, and 0.63% in Wisconsin). It is also these states — with the addition of New Mexico — that the Trump campaign worked with to submit slates of fake electors to Congress in an attempt to overturn the election results, according to Tuesday’s indictment.
After electoral results came in on November 3, 2020, the election was too close to call. By November 7, it was clear that Biden had won enough votes to become the next president. Yet, Trump refused to concede defeat. Instead, he baselessly claimed that the election was fraudulent, that voter fraud was so prevalent that it tipped the scales to Biden, and that he, Trump, was the rightful winner.
In an effort to remain in office, Trump pressured state officials to find a way to declare him the winner (including the now-infamous phone call to Georgia Secretary of State Brad Raffensperger in which Trump explicitly stated that he wanted to find 11,780 votes — just one more than he lost the state by). However, Trump’s pressure campaign on state officials failed. All Secretaries of State certified the results as they stood after any mandated and requested recounts were complete.
In response, the Trump team began to pursue a fake elector scheme. According to the indictment, Trump and his allies began to recruit Republican electors in Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania, and Wisconsin. The plan was for these Republican electors to sign election certificates certifying Donald Trump as the rightful winner of these states’ popular votes rather than Joe Biden.
This fake elector scheme began in Wisconsin, but quickly spread to these other states, with the ultimate goal being to prevent Biden from winning 270 electoral votes — the number needed to win the presidency. In an email, Kenneth Chesebro, an attorney working for the Trump campaign, wrote, “the plan was to falsely present the fraudulent slates as an alternative to the legitimate slates at Congress’s certification proceeding” (quoted in Amiri’s AP piece). Some electors refused to participate, citing reservations about what they were being asked to do.
Yet, many still signed because Trump’s attorneys assured them that these ballots would only be counted if the Trump campaign won its legal challenges in the states. These results were instead sent to Congress and presented as legitimate. However, only the state-certified ballots were counted and Biden was declared the winner, despite the insurrection that disrupted the counting of the legitimate ballots.
Need for Electoral College reform
Now, what does all of this have to do with the fragility of American democracy? In this instance, American democracy prevailed and the legitimacy of our electoral process was preserved. Congressional leaders and then-Vice President Mike Pence counted the legitimate, state-certified ballots. But, what if they didn’t? What if Congress disputed the results, debated about which results to accept, and voted to accept the fraudulent ballots? Donald Trump and his campaign team would have completely undermined the legitimacy of the U.S. electoral process, paving the way for Trump to remain in power despite losing the popular vote and the ‘contested’ Electoral College.
As I wrote about here, the calcification of our hyper-partisan nature has become an accepted part of our current political climate. Importantly, this makes the situation described above seem completely possible. Given this calcification of our politics, it is getting harder to imagine a scenario in which a hyper-partisan Congress presented with a fake slate of electors that aligned with the party in the majority would reject the fraudulent ballots.
All of this clearly highlights the need for Electoral College reform. There is no reason for an election to hinge on the partisan makeup of Congress. American voters should not have to hope that the Vice President doesn’t give in to a President’s request to accept fraudulent ballots over those cast legitimately — especially when those legitimate ballots align with the popular vote.
One of political science’s foremost democracy scholars, Robert Dahl, tells us that we should evaluate democratic processes with an eye toward political equality. Our current Electoral College system does not support political equality — it clearly weights some votes more than others. However, an Electoral College system that can be manipulated by fraudulent electors and a hyper-partisan Congress is even more problematic. The latest Trump indictment makes a very clear case for Electoral College reform.
