Figures in pro-Trump media are signaling a pivot to encouraging faithless electors in the still-undecided 2020 presidential election. The strategy is to encourage Republican-controlled legislatures in key states such as Pennsylvania, Wisconsin, and Michigan to claim constitutional authority to appoint pro-Trump electors to the Electoral College, regardless of their state’s popular vote.
On November 4, former Trump national security official Michael Anton lied online about an alleged Democratic plot to steal the election in multiple states. Anton called for Trump supporters to “stop the steal” and outlined several potential steps, including “urge GOP officials in close states to expose shenanigans and, if necessary, to refuse to seat Biden electors in the event of a fake count.” There is no evidence of “a fake count” or any “shenanigans” that would affect results.
Also on November 4, Fox host Mark Levin tweeted in all caps that Republican state legislatures should “get ready to do your constitutional duty” and exert “final say” over all electors. The tweet was retweeted by President Donald Trump’s son Donald Trump Jr.
This growing encouragement of faithless electors is rooted in a side note from then-Chief Justice William Rehnquist in the Bush v. Gore decision, about an “independent state legislature doctrine.” According to ProPublica’s Ian MacDougall, Rehnquist’s idea was a narrow reading of the Constitution, which “gave state legislatures exclusive authority to run presidential elections.” Thirty-three states and Washington, D.C., have laws requiring their electors to vote in accordance with the state popular vote, however 17 of these laws have no enforcement mechanism. Two key states, Pennsylvania and Georgia, are among those with no faithless elector laws whatsoever.
The argument that state legislatures have an absolute right to appoint electors has already appeared in right-wing media and Trump campaign attempts to undermine the ongoing ballot-counting process in Pennsylvania. But as margins tighten and a Trump campaign lawsuit in Michigan has been thrown out, Trump’s defenders are growing more desperate.