By John Rogan

November 28, 2023, 9:30 AM

Donald Trump’s federal and Georgia indictments for trying to subvert the 2020 election prominently feature the scheme to submit fraudulent slates of presidential electors from seven states. The Georgia indictment also charged lawyer Kenneth Chesebro, the plot’s principal architect, who recently pled guilty. This attempted fraud also led to state charges against the people who tried to pose as electors in Michigan, and Nevada is reportedly investigating its fake electors.

Beyond its alleged criminality, the fake electors plot highlights a flaw in the Electoral College. Tasking electors—who are not always reliable—with transmitting the will of their states’ voters creates a needless vulnerability in presidential elections.

The Constitution’s framers envisioned that independent electors would meet in their respective states to deliberate and choose the president and vice president. But the emergence of political parties undid this vision. Today, when voters choose a presidential candidate, they are voting for a slate of electors associated with that candidate’s political party. If a candidate receives the most votes in a state, then the electors from the candidate’s party are appointed as the state’s electors (except in two states that appoint electors by congressional district). These electors are empowered to submit the state’s formal votes for president. Since the first contested election in 1796, electors have overwhelmingly voted for their parties’ nominees without using any of their own discretion.

However, there have been exceptions. Some electors have declined to vote for the candidates selected by voters. Others have attempted to cast votes without being lawfully appointed, as occurred in 2020. In some instances, electors have been central to schemes to upend the will of voters in presidential elections. 

Electors do not have a democratic mandate. For centuries, they have not been expected to have a voice in selecting the president and vice president. The system should work how the public expects, and electors should respect, not disregard, voters’ choices.

Existing laws address some vulnerabilities, but more steps are needed to ensure electors stay within their well-established ceremonial role.

In 2020, electors’ involvement was an invitation to mischief. In seven battleground states that President Biden won, the Trump campaign convinced Republican electors to purportedly cast electoral votes declaring Trump had won. Those individuals had been nominated before the election by their state Republican parties to serve as electors if Trump won their states. Because Trump lost, the Democratic electors were appointed as the legitimate electors.

In two of those seven states, the Trump electors stated that their votes should only be used if Trump prevailed in challenging the results. Even though the results did not change, the Trump campaign still tried to submit those two fake electoral slates to Congress.

The fake Trump electors from all seven states were integral to the pressure campaign targeting Vice President Mike Pence. Trump and others futilely urged Pence to overturn the election by using the fake electors’ votes while Pence was presiding over Congress’ January 6th count of electoral votes.

Congress had received conflicting slates of electors in prior elections, but with significant differences. In the 1876 election, electors for both candidates in three states purported to cast their votes. But, unlike in 2020, that race involved extensive fraud and voter intimidation.

In 1960, Hawaii’s exceedingly close popular vote margin of about 100 votes prompted both candidates’ electors to vote. In fact, the state’s governor changed the certification of electoral votes based on a recount finished after the Electoral College meeting, when the state’s electors formally cast their ballots. The slimmest vote margins in 2020—approximately 10,000 votes in Arizona and Georgia—were 100 times larger than Hawaii’s 1960 margin. Moreover, litigation and recounts had mostly concluded when Trump’s fake electors purported to vote. It was implausible that the outcomes in the seven states would change. Despite these distinctions,  Kenneth Chesebro invoked the 1960 election to support the 2020 scheme.

Updates to federal law following the 2020 election establish a clear deadline for governors to certify electors. This process now must occur prior to the mid-December meeting of the Electoral College. The change discourages fake electors by extinguishing the possibility that they could be recognized after purportedly voting. Previously, ambiguities in the law prompted arguments, including from Chesebro, that states could retroactively certify electors. The post-2020 reforms in the Electoral Count Reform Act also demand that Congress treat governors’ certifications as “conclusive” and affirm that the vice president’s role in counting electoral votes is ministerial.

Additionally, some state laws create detailed procedures for casting electoral votes, such as by specifying locations for casting the votes and requiring that state officials be present. The fake Trump electors failed to comply with these requirements, which added to their illegitimacy. Although federal law strongly protects against future fake elector plots, states with less detailed procedures might consider adding more specifics.

Separate from fake electors is the problem of faithless electors—those electors who refuse to vote for the candidate chosen by their states’ voters. Alabama Governor George Wallace’s third-party run in 1968 could have exploited the faithless elector vulnerability. Wallace did not intend to win the presidency. Instead, he sought to secure enough electors to deprive the two major party candidates of an Electoral College majority. This could have allowed him to play kingmaker by directing his electors to vote for his chosen major party candidate. Wallace instructed his electors to sign affidavits pledging to vote for him “or whomever he may direct.”

Richard Nixon won an electoral vote majority, so Wallace did not get to implement his plan. Still, he managed to win five states and 46 electoral votes (one of which was a faithless vote from a state he lost). It was a close enough call to spark a major push in Congress to abolish the Electoral College in favor of the national popular vote. Even some lawmakers who opposed popular election of the president wanted to eliminate electors’ role in the system. Wallace’s plot is especially noteworthy given the possibility of third-party and independent candidacies in next year’s election.

Following Trump’s 2016 victory, electors faced pressure to block him from taking the White House. Republican electors said they were inundated with phone calls and thousands of emails. Some activists, celebrities, and nearly five million petition-signers urged the electors not to vote for Trump. Ultimately, electors cast seven faithless votes, while state laws blocked three attempted faithless votes. Only two Trump electors, both in Texas, declined to support him. Some of the Clinton electors who defected tried to find a consensus alternative whom Trump electors would support.

Faithless votes were inconsequential in 2016, and there have been relatively few in the nation’s history. Nevertheless, they could make a difference in the future. In the 2000 election, just two defections among George W. Bush’s electors (the same number Trump lost in 2016) would have prevented him from receiving an Electoral College majority, meaning the House of Representatives would have chosen the president.

Removing electors from presidential elections would require a constitutional amendment. Given the challenges of amending the Constitution, the most realistic option is for states to pass laws curtailing electors. In 2020, the Supreme Court confirmed states’ ability to do so. Thirty-three states and Washington, D.C., already have laws to prevent faithless votes. But many of those provisions only require that electors pledge to support their parties’ nominees or fine electors for casting faithless votes—without actually preventing faithless votes from being cast. Laws that automatically cancel attempted faithless votes, which some states have implemented, are needed in every state.

Importantly, elector laws should account for the death of presidential or vice-presidential candidates. This contingency raises a host of challenging issues, and there is no ideal solution. But electors should not be bound to vote for deceased candidates.

The Electoral College is a mishap-prone system. It should be abolished. Yet, barring that elusive solution, the system should be made to work as well as possible, including by preventing electors from influencing election outcomes.