The most alarming moment at Trump’s rally, which bore elements of quasi-fascism at Madison Square Garden, wasn’t just the distasteful and crude comments made by the likes of the so-called comedian Killer Tony, who made derogatory remarks about Puerto Rico and offensive jokes about Black Americans during Halloween. Indeed, these comments were repulsive.
Rather, it was Trump’s declaration that he and GOP House Speaker Mike Johnson harbored “a little secret” aimed at overturning the election results. As warned by Rep. Dan Goldman, there is a possibility that Trump and Johnson could approach the House to discard the official electoral vote certification and instead, enable the Republican-led House majority to declare Trump the winner.
This scenario might unfold as follows: MAGA supporters might challenge the electoral vote distribution in pivotal swing states, aiming to delay or prevent the certification of electoral votes in certain counties or states. This could block either candidate from securing the required 270 electoral votes, thereby pushing the decision to the House of Representatives for a “contingent election.” In such a scenario, where each state has one vote, the Republican majority could likely prevail, especially if the Democratic Party does not gain control in the upcoming elections.
Unpledged Electors
While most states allocate their electoral votes to the presidential candidate who wins the popular vote within that state, the U.S. Constitution does not mandate this practice. Per Article II, Section 1, states are at liberty to choose their electors. This opens the door for the so-called “faithless electors” to vote for a different candidate than the one who won the state’s popular vote. This phenomenon has occurred nearly 100 times in U.S. history, though it has not yet altered the final outcome of an election. However, this election could potentially be different.
State laws in 15 states invalidate the votes of faithless electors and appoint replacements, but in 19 states, these votes stand. Some of these states enforce penalties, while others, such as Pennsylvania, do not.
In July 2020, the U.S. Supreme Court ruled in Chiafalo v. Washington that states can indeed “penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State’s popular vote.” However, the Court did not compel states to enforce this ruling.
Imagine that Harris wins all traditionally Democratic states plus swing states like Wisconsin, Michigan, and Pennsylvania, achieving exactly 270 electoral votes to Trump’s 268. If a faithless elector in a state that allows it changes his or her vote, or if a court challenge leads to the invalidation of some votes, neither candidate would reach the majority in the Electoral College. This would shift the decision to the House, where, unless recent elections have altered the balance, the Republican majority could hand the victory to Trump.
Legal Battles Potentially Shifting Electoral Votes from Harris to Trump
Several court cases could also influence the electoral college outcome, particularly in a tight race focusing on Pennsylvania.
In Republican National Committee v. Wetzel, the conservative-leaning 5th Circuit Court of Appeals recently decided that states cannot legally count ballots that are mailed before but arrive after Election Day. As Mark Joseph Stern pointed out in Slate, “18 states and Washington, D.C. accept late-arriving ballots; the 5th Circuit’s logic could invalidate these laws and disregard potentially millions of votes.” The Supreme Court might affirm or reverse this decision, potentially affecting many votes cast for Harris.
Additionally, in Genser v. Butler County Board of Elections, the Pennsylvania Supreme Court allowed voters whose mail-in ballots had minor errors (such as missing a second “security envelope”) to submit a corrected provisional ballot. The Republican Party has requested that the U.S. Supreme Court prevent these provisional ballots from being counted. A favorable ruling for the Republicans here could disqualify thousands of votes in Pennsylvania, reminiscent of the 2000 election where a narrow margin and a Supreme Court decision in Florida secured Bush’s presidency.
With a conservative 6-3 majority in the Supreme Court, a similar intervention could once again tilt the election in favor of the Republican candidate, Donald Trump.
Supporting a Democratic House Majority
The most effective way to counteract the alleged covert strategy by Trump and Johnson is to alter the majority in several state delegations from Republican to Democratic. This is why it is crucial for supporters of Harris to vote strategically in every state, particularly supporting Democratic candidates for the House of Representatives.
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