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With President Donald Trump’s subversion efforts suffering blow after blow, some of his allies have looked to the Electoral College and the prospect of so-called “faithless electors” as a potential avenue for keeping the President in power.
Joe Biden’s sizable margin of victory, the setup of the Electoral College, and a recent Supreme Court ruling make it all but impossible for faithless electors to play any meaningful role in this year’s election. Here’s what you need to know:
What are faithless electors?
Through the Electoral College system, each state gets a certain number of electors based on how many representatives it has in Congress. Those people cast the official votes for President.
Historically, electors have overwhelmingly voted for the candidate who wins the popular vote in their state – but they can stray. If they do, they’re called faithless electors.
How common are they?
Faithless electors are exceedingly rare by design. Electors are chosen because of their loyalty to their party. Basically, they’re partisans.
As a result, defectors don’t crop up too often.
In the last presidential election, 10 of the 538 presidential electors went rogue. But you’d have to go all the way back to 1796 to find an example of an elector giving their vote to the active opponent of their pledged elector.
As election law expert and CNN contributor Rick Hasen put it: “You’re not going to get some of the most ardent Biden supporters in the country to vote for Trump, just like you wouldn’t get the most ardent Trump supporters in the country to vote for Biden.”
Have faithless electors ever swung an election?
It’s never happened, though there are past examples where – theoretically– faithless electors could have changed an election outcome.
For instance, it would have taken only two Republican electors to have voted for someone besides George W. Bush in 2000 to potentially change the outcome. His total vote of 271 would have slipped to 269 and the election would have gone to the House.
But remember: the margin is much wider this year. Biden carried 306 electoral votes in the election, with Trump getting 232. That means Republicans would need an enormous number of faithless electors for Trump to prevail.
Is being a faithless elector even legal?
It depends on where you live.
This presidential election is the first to take place after the Supreme Court ruled this summer that states can punish faithless electors who break a pledge to vote for a state’s popular vote winner in presidential elections.
“Today, we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State’s popular vote. We hold that a State may do so,” Justice Elena Kagan wrote.
“The Constitution’s text and the Nation’s history both support allowing a State to enforce an elector’s pledge to support his party’s nominee – and the state voters’ choice – for President,” she added.
In all, 32 states and the District of Columbia have laws that are meant to discourage faithless electors. But until 2016, no state had ever actually punished or removed an elector because of his or her vote.
Three presidential electors in Washington state, for example, voted for Colin Powell in 2016 rather than Hillary Clinton and one voted for anti-Keystone XL pipeline protester Faith Spotted Eagle. A $1,000 fine was upheld by the state Supreme Court.
The US Constitution, that court held, “grants the states plenary power to direct the manner and mode of appointment of electors to the Electoral College.”
The bottom line
Like so many of scenarios propagated by the President’s allies in the wake of his election loss, the notion that faithless electors will keep him in power is not based in reality.
“The electors have been chosen in a way to ensure that they are politically loyal,” Hasen told CNN.
“Right now, we have every expectation that Biden will get about 306 electoral college votes. Trump would get to 232 electoral college votes.”