Did a recent unanimous ruling by the Supreme Court addressing the Electoral College give Donald Trump a way to steal the 2020 election?
In an article I wrote back in July, I covered the unanimous ruling by the Supreme Court in favor of appeals filed by the states of Washington (Chiafalo v. State of Washington) and Colorado (Colorado Department of State v. Baca) regarding laws requiring electors to vote according to the will of those states.
Though many claimed the decision preserved election integrity, in reality, it gave the nationwide effort to do away with the Electoral College an enormous boost.
Specifically, the two appeals addressed so-called “faithless electors” — people who refused to cast their votes for the popular vote winner in their states. Writing on behalf of the court, Justice Elena Kagan said:
“The Constitution’s text and the nation’s history both support allowing a state to enforce an elector’s pledge support his party’s nominee — and the state voters’ choice — for president.
“The Constitution is barebones about electors. Article II includes only the instruction to each State to appoint, in whatever way it likes, as many electors as it has Senators and Representatives.” (emphasis mine)
As I noted at the time, this sounded reasonable until we dug a little deeper into what motivated the appeals in the first place.
Washington and Colorado weren’t concerned about protecting the will of the voters in their states, they were looking for a way around the Electoral College that would allow them to support the “party’s nominee” without amending the Constitution, regardless of how the voters voted.
The desire to do an end-run around the Electoral College was the crystal clear motivation when the Supreme Court first agreed to hear these appeals back in January.
Colorado Secretary of State Jena Griswold admitted as much at the time when she said how she was looking to use the case to make it possible for Colorado to give their electoral votes to the winner of the national popular vote even if another candidate won the state.
Griswold said, in part, that the court should “protect the rights of the state to enforce their laws and defend the rights of Americans to choose the U.S. president.” (Emphasis mine. And did you notice that she said Americans, not Coloradans?)
Colorado and Washington are participants in the National Popular Vote Interstate Compact (NPVIC), a legal agreement between several states and the District of Columbia that permits them to give their Electoral College votes to the presidential candidate who wins the national popular vote, regardless of who won the popular vote in those states.
There are currently 16 jurisdictions representing 196 electoral votes where laws have been passed to join the compact. Once enough states join to reach 270 electoral votes, it will be enacted.
Despite the implication that the Supreme Court has protected the Constitution and the Electoral College, their ruling only protects political parties, not the voters. This is indirectly confirmed in Kagan’s opinion when she referenced “allowing a state to enforce an elector’s pledge.”
Enter Donald Trump and the 2020 election — an election he’s likely to lose.
According to a report by The Atlantic, Donald Trump is making “contingency plans” to ignore the Electoral College and the outcome of the 2020 election if he loses.
The report delves into possible scenarios if Trump apparently loses the 2020 presidential election but doesn’t concede, noting that although we’re used to electors being selected based on the popular vote, “nothing in the Constitution says it has to be that way.” Citing Republican Party sources, The Atlantic says that Trump’s campaign is “discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority.”
The Atlantic is right; there are no provisions in the Constitution or federal law requiring an elector to vote for the winner of their state — a fact confirmed by Kagan in her opinion.
But how would Trump justify such an obvious attempt to steal the election? The Atlantic explains:
The campaign would reportedly assert that this step was necessary due to claims of supposed voter fraud, which experts have noted is extraordinarily rare, ahead of the “safe harbor” deadline to appoint 538 electors on Dec. 8.
“Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly,” The Atlantic reports. “The longer Trump succeeds in keeping the vote count in doubt, the more pressure legislators will feel to act before the safe-harbor deadline expires.”
A Trump campaign legal adviser who spoke to The Atlantic said that in this scenario, “the state legislatures will say, ‘All right, we’ve been given this constitutional power. We don’t think the results of our own state are accurate, so here’s our slate of electors that we think properly reflect the results of our state.” Lawrence Tabas, chair of the Pennsylvania Republican Party, also told The Atlantic he has discussed the direct appointment of electors with the Trump campaign, saying, “I’ve mentioned it to them, and I hope they’re thinking about it too.” The Trump campaign said it is “fighting for a free and fair election.”
Donald Trump has already been busy making plans to invalidate mail-in ballots by sabotaging the United States Postal Service, and he’s been spreading the lie at campaign rallies that the only way he will lose the 2020 election is if it’s rigged. In addition, he recently announced plans to use law enforcement to “monitor” polling locations in order to ensure a “free and fair election.”
But all of these efforts will pale in comparison to his plan to steal the election outright by manipulating the Electoral College.
And thanks to the Supreme Court, the way has been paved for him to do so and get away with it.
David Leach is the owner of the Strident Conservative. He holds people of every political stripe accountable for their failure to uphold conservative values, and he promotes those values instead of political parties.