Donald TrumpDonald TrumpJury in Jussie Smollett trial begins deliberations Pence says he'll 'evaluate' any requests from Jan. 6 panel Biden's drug overdose strategy pushes treatment for some, prison for others MORE’s options continue to narrow. The president lost the Electoral College vote to Joe BidenJoe BidenPharma lobby eyes parliamentarian Demand for US workers reaches historic high Biden to award Medal of Honor to three soldiers who fought in Iraq, Afghanistan: report MORE, 306 to 232. Trump has sought, unsuccessfully, to delay certification in states that Biden narrowly won, including Michigan, Georgia, Arizona and Pennsylvania. His legal team’s allegations of voter fraud have not fared any better, failing to produce evidence that meets a legal standard.
Now time itself no longer is on the president’s side, either. The 538 Electoral College electors will gather in their states and cast their ballots on Dec. 14, the penultimate step before Congress finalizes the count on Jan. 6, 2021.
So what might the president still do? Given that Trump seems disinterested in any traditional concession — and that many of his media allies and supporters are invested in struggling on, no matter the odds — one of his few remaining strategies might be an appeal for electors to “turn rogue” and support him, even if they are pledged to Biden. For many reasons, however, this is not a promising path for the president, either.
A quick civics refresher: As Tom Goldstein reported on SCOTUSblog, Remember that when we vote for president, we are not actually voting for the candidate we prefer, but rather for a slate of electors. Almost every state — except for Maine and Nebraska, which allocate a single elector via winning the popular vote in a congressional district — awards every elector to the statewide popular vote victor. The U.S. Constitution provides latitude to individual electors to cast their ballot for the person of their choosing.
On paper, that’s where it could get interesting. Biden’s lead in the popular vote is approaching 7 million. Nevertheless, under the rules of the game, Trump’s campaign would need to convince 37 electors pledged to Biden to vote for Trump instead, rather than the winner of their state’s popular vote, in order to tie the Electoral College and pitch the election into the U.S. House. It’s the longest of long shots.
First, 33 states and the District of Columbia require electors to vote for the candidate to which they are pledged. Nineteen of those states, as well as Washington, D.C., went for Biden — which means that 199 electors of the 270 are pledged by law to the former vice president. While many states do not provide a penalty for a “faithless elector,” 14 states do allow for the vote to be canceled and the immediate replacement of the elector. The U.S. Supreme Court upheld the constitutionality of those laws this summer in a case called Chiafalo v Washington.
Trump, then, faces a shrinking pool. He would need 37 of the remaining 106 Biden electors to switch sides. History shows how unlikely this would be. Faithless electors, after all, never have changed the outcome of a presidential election. More than that, so far, only one elector in the nation’s history has ever cast a vote for the opposite party’s nominee instead of his or her own in a close race. For that, you need to go all the way back to 1796, the very first contested presidential election, when Samuel Miles, a Federalist from Pennsylvania, voted for Thomas Jefferson rather than his own party’s candidate, John Adams.
Indeed, there have been a total of 23,507 electoral votes cast across 58 presidential elections. Only 90 of them have been cast as “deviant” votes. And 63 of those were cast for another candidate because of the death of a losing candidate — Horace Greeley, in 1872 — between the November election and the Electoral College gathering.
Simple math shows that Trump would need more electors to defect to him — 37 — than the 27 that have cast ballots for someone other than their pledged candidate across the last 224 years.
Now consider this: Electors aren’t chosen at random. Political parties understand the importance of choosing a slate of electors who can be trusted to reliably vote on behalf of their nominee. In Pennsylvania, for example, the state’s slate of 20 Democratic electors includes an array of elected Democrats and labor allies, including the state attorney general, several former and current members of the legislature, the mayor of Biden’s hometown of Scranton, and the president of the AFL-CIO. Nationally, other Democratic electors include Stacey Abrams in Georgia and Hillary ClintonHillary Diane Rodham ClintonBiden nominates Meg Whitman as ambassador to Kenya Hillary Clinton shares part of her 2016 victory speech for the first time Ben Affleck: Republicans 'want to dodge the consequences for their actions' through gerrymandering MORE in New York. Electors are selected for the intensity of their partisan leanings; this is not a group where a second Trump term would hold much, if any, appeal.
It is certainly true that the 2016 election between Trump and Clinton featured an abnormally high number of electors willing to break with their party and cast a deviant Electoral College vote. Three Democrats from Washington, for example, voted for Colin Powell instead of Clinton as part of an unsuccessful effort to convince other Republicans to vote for someone other than Trump. In some ways, that shows the difficulty Trump would face going down this road: It’s the losing electors, not those on the winning side, who are most inclined to broker some kind of deal. In the end, after deviant electors from Minnesota and Colorado were replaced, seven votes were cast for candidates other than Trump or Clinton. Rather than the expected outcome of Trump 306, Clinton 232, history will record the final tally as Trump 304, Clinton 227, others 7.
When electors meet this month, the expected vote, once again, is likely to be 306-232, but with the Democratic candidate, rather than Trump, in the lead. We don’t know if that will be the final tally, but we can feel every confidence that it will be the final result.
Rob Richie is the president and CEO of FairVote.
Editor's Note: This article was updated after publication.