Electoral College Chicanery Is Still Possible – Sorry!

by Mary W Maxwell, LLB

November 5 was NOT the date for Election of the US president.  It can only be done by the Electoral College and they will meet on December 16.  The mass media know this but are not breathing a word. That makes me think they foresee a big upset – the upset that the Big Guys are hoping for. Oh dear.

Of course, with any luck, I’m wrong.  And I’m really sorry to distress all the 72 million Red voters, and probably many of the 67 million Blue voters. On November 5, It seemed that normalcy could return to our nation. Indeed, it may be so, and the problem I will now describe may not happen, OK?

Nevertheless, I will spell it out.

First of all, the US Constitution is the top authority for Americans. The manner of choosing a president, and the manner of replacing him if he resigns or dies, is clearly stated therein.  I will write a separate article about replacing a president; today I am writing about choosing him/her.

The Constitution says, in Article II, that each state’s legislature (not the governor, not the state population of adults, but specifically the legislature) will arrange for Electors to meet on such-and-such date. This year, per federal legislation, it’s December 16, 2024.

Each Elector will be given an empty ballot for president and an empty ballot for vice-president. They will fill in two names (and the two persons cannot be inhabitants of the same state). At the end of the meeting, these are certified by the state governor — I presume he wants to be sure that no Elector named an ineligible person – such as one under age 35, or foreign born.

Then these ballots are also copied onto a summarizing ballot, and all are wrapped up and sent to Washington DC, where they will be read out, in Congress, on January 6, 2025. Copies are also sent to the national archive, and to a local judge for safekeeping in case the original goes astray. (See? the law anticipates trouble and gives a remedy.)

Who Are the “Electors”?

And who are these electors? Are their names pulled out of a hat? Constitutionally, it would be OK to do a hat-pull if that is what a state legislature wants. But in most states, an agreement has been reached between the major Parties and the state, giving each Party the “right” to name all electors for that state in accordance with how the popular voting went on the first Tuesday in November.

I don’t like calling states by names of a color, but for convenience let’s say that, since the Blues won in my state, New Hampshire (I mean on Nov 5, 2024, Harris got more votes at the polls than Trump), the Democrat Party in NH will choose four of its members to be the Electors. These must meet in the capital city, Concord, on December 14.

Note: Why does NH have 4 electors and Florida has 30? Each state has as many electors as it has members of the House of Reps. Florida has 28 Reps, NH has 2. Plus each state adds an additional two Electors to reflect its two senators. (I imagine that was done to pad the smaller states.)

The system is “winner-takes all”, except in two states, Maine and Nebraska, where it is proportional. Nebraska has 5 electors. Pretend that 80% of the November 5 votes in NE went to Trump and 20% to Kamala – one elector would be sent to Nebraska’s College to vote for Kamala, on December 14, and 4 to vote for Trump. (The College” is not a specific place. They could meet at MacDonald’s.)

“Faithless” Electors

I hear you ask “What if one of the Electors, for example one of Trump’s, got lectured by her grandfather that morning as to Trump’s criminal indictments and so she arrived at the College and cast her Electoral ballot for Kamal, would that be legal?

It depends. Approximately 30 of the 50 states have a law (made by the state legislature) that obliges the Elector to vote as instructed. That Elector is said to be “pledged” to Trump or to Kamala. In those states, the Elector must not be swayed by Grandpa’s lecture.

The US Supreme Court has said it is constitutionally OK for a state to legislate this way. See Ray v Blair in Alabama, 1952, and Chiafalo v Washington in 2020.  The Elector who goes astray in a Pledged-Elector state is called a “faithless” elector. He/she can have his/her ballot overridden, and/or can be penalized, say, by a fine.

Remember, I said that a state can opt for a hat-pull. This is state sovereignty! The Framers of the Constitution in 1787 were delegates from the 13 states; they definitely intended that a president get into office in a way that involved states.  (Ahem, they did not intend that Parties be the brokers, as the word ‘Party’ does not even appear in the Constitution.)

UNPLEDGED Electors

Now we come to the matter of how we might get a big surprise on December 14 this year. It has to do with “unpledged Electors.” Approximately 20 states do not have a rule to oblige the individual Elector to cast a ballot that reflects the popular vote of November 5th in his/her state.

By George, I have been searching for the last hour to locate a list of unpledged states, to no avail. However, in 2020, I wrote an article about Unpledged Electors, and at that time I had found 18 such states. I am guessing that they still allow unpledged Electors. So I’ll name them here, along with the number of electors for that state. Please forgive my incomplete research; I am in a hurry. Note: I will bolden the states that voted for Trump on November 5, 2024:

Arkansas 6, Georgia 16, Idaho 4, Illinois 19, Kansas 6, Kentucky 18, Louisiana 8, Mississippi 6, Montana 4, New Hampshire 4, New Jersey 4, New York 28, North Dakota 3, Pennsylvania 19, Rhode Island 4, South Dakota 3, Texas 40, West Virginia 4.

All up, those 18 states control 207 Electoral votes.  So, theoretically, if 207 grandfathers had given 207 lectures to ask their grandkid to switch to the opposite Party when they went to MacDonald’s, I mean to the Electoral College, it would be legal. No pledge, no obligation.

There is strong reason to think this would not happen. So far it has almost never happened. After all, even an unpledged Elector was appointed by his Party – Parties would choose only a person likely to be loyal. But as I said, I am playing a game here. My goal is to show that the apparent Trump victory is not yet settled, constitutionally.

Now go back to my list of bolded states. These are the only ones that Trump need worry about. The states which are not bolded are “blue” and presumably (if there be a secret plan to elect Kamala) those Electors will stick with their blueness. Counting up the number of votes from these red states, we see that there aren’t 207but only 133 that we should worry about.

Dear Reader, I say again that this is an exercise. We should all be aware that such a thing can happen. Kamala has 226 Electors and Trump has 295. (As I am writing this on Nov 6 at 8pm, two states have not been “called” by the media — Arizona, worth 11 and Nevada, worth 6.)

For Trump to win the Electoral College vote, he needs 270. He now holds 295 and could get another 17 if Arizona and Nevada get “called” for him. Imagine he does win those two states, and so holds 312 Electoral votes. Wow. It is nearly unimaginable that 42 unpledged electors will do Grandpa’s bidding.  (Oh, it doesn’t have to be a grandpa that makes this happen. It could be a gang with a knife, or a person holding a bag with 5 million bucks in it.)

Stay Calm

So what should we do if there is a terrific upset at the fifty MacDonald’s on Monday December 16, 2024? Oops not all 50, just the 20 or so that have Unpledged Electors.

I say we should stay calm. As far as I can tell, the “riot” of January 6, 2020 was the work of agents provocateurs. There was a genuine reason to complain about a possible stolen election, but there were ways to deal with it. Constitutional Amendments 12 and 25 have got everything covered.

We should not let the media tell us that people are so angry that they will start a shooting war. I myself am a “red” voter but I can stay calm if the Electors do the unexpected, and if Kamala wins.  Luckily, there are 20 full days before the counting of the Electors’ ballots on January 6. So don’t shoot, OK?

But even after we see that Unpledged Electors have done the dirty, we should say calm. If Kamala got thereby elected, so what? It appears to me to be legal. Granted, if a whole slew of the Unpledged do this very odd thing we should – at our leisure – treat it as some sort of problem. Just don’t go berserk on December 14 when it happens. America has a beautiful legal system. We are big boys and girls and can handle this.

How Congress Gets Involved

The Constitution has provided for a January 6 situation in which neither candidate received 270 Electoral votes. (That number is not magic; there are 538 Electors nationwide, and half of that is 269. Add 1 and you get 270, a simple majority.)

Pretend that Trump did indeed lose 43 votes (via Unpledged people doing what I described). Then he’d have less than the needed 270. Assuming Kamala gets those 43, added to her current 226, she will have 269, not enough to sail in to the White House on January 20, 2025. Rather, the Congress will have to get involved.

Both houses of Congress meet together on January 6, where there is a ceremonial opening of the Electors’ envelopes from 50 states plus Washington DC. As soon as a state is called, in alphabetical order, the person presiding (namely, the Vice President of the US) asks if there are any objections.

Pretend, when they get to Colorado, any Senator says “Yes, I object.”  He must then find a member of the House of Reps to co-sign his objection. At this point, the boss (the VP) sends the senators back to their chamber. Each house has up to two hours to debate it. If they agree that one or more of Colorado’s votes is sullied, is set aside. It won’t count.

This activity by Congress may cause one of the candidates to end up with the needed simple majority to win the Election. But what if neither Kamala nor Trump has a simple majority? Do not worry. Stay calm. The Constitution walks in the door and says “Hi Everybody! Let me help.”

The US House of Representatives is then allowed, perfectly legally, to choose our new president. They mustn’t name a person who did not participate in the election. They can only pick from the top three vote getters.  Say it is Kamala, Trump, and Robert F Kennedy, Jr.

We have 435 Reps, but not every one of them can cast a vote. They must huddle in their state delegation. For New Hampshire, that will be Rep Chris Pappas, and Rep Maggie Goodlander (who came aboard only on Jan 3, 2025  as a freshman Rep). NH will cast its vote, and so will the others.

In some states one rep is blue and another red, so might the fight go on for days? I don’t think so, as the law says they cannot leave the room until they settle on a candidate.

The law thinks of everything.

One more reason to be calm.  It does not matter so much who is president. The role is vastly overstated. Congress holds the greater power and can even escort a president to the door, so to speak.

Reds and Blues need to get together and stop hating and fearing each other. That is all a big fat trick that has been played on us.