Quick Take
After the 2016 presidential election, some progressive Democrats tried to convince electors for Donald Trump to switch their Electoral College votes to Hillary Clinton. But a conservative commentator misleadingly claimed in a social media post that the Democrats were “calling for alternate electors” — as Trump did after losing the 2020 election.
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In 2016, Hillary Clinton won the popular vote by 2.9 million votes, but lost the Electoral College to Donald Trump. Prior to the Electoral College vote, which Trump was expected to win 306-232, some progressive Democrats proposed getting Republican electors to switch their votes to Clinton or another Republican on the grounds Trump was unfit for office.
The effort ultimately failed, as expected, with Trump winning 304-227 after five Clinton electors and two Trump electors switched votes and took on the mantle of “faithless electors” — electors who cast a vote for someone other than their party’s nominee. The effort cost Clinton more electoral votes than it did Trump.
Now, the Democrats’ effort in 2016 has emerged as a justification for the Republican effort in 2020 to replace full slates of duly chosen electors pledged to Joe Biden with so-called “alternate electors” loyal to Trump.
In a snapshot of a tweet shared on Instagram, Dinesh D’Souza, a conservative political commentator, equated the two efforts and said the 2016 bid probably inspired then-President Trump in 2020 to pursue the alternate electors’ route. The scheme has become a focus of the House select committee investigating the Jan. 6, 2021, attack on the Capitol.
“I’m chuckling about the fake outrage over Trump seeking alternate electors for the 2020 election,” tweeted D’Souza. He then misleadingly claimed, “The Left and the Democrats were calling for alternate electors after the 2016 election. Trump most likely got the idea FROM THEM.”
D’Souza produced the film “2000 Mules” — which, as we’ve written, uses unreliable data to make unproven allegations of widespread voter fraud in the 2020 presidential election. D’Souza himself was convicted of election finance fraud in 2014 for making illegal contributions to a Senate campaign in the names of others.
As with anything involving the Electoral College, D’Souza’s claim requires some unpacking to reveal the apples-and-oranges character of his spurious claim.
Basic Differences in 2016 and 2020 Efforts
First, the Democrats were not calling for “alternate electors” in 2016 but “faithless electors” who were duly chosen to represent their states in the Electoral College. Most of those who did switch their votes broke their own states’ laws by not voting for the candidate to whom they were pledged.
Those seeking to submit slates of alternative electors in 2020 wanted to remove duly chosen electors by fiat and reverse the outcome in battleground states won by Biden and certified by state election officials. No one has been charged in that effort yet, but Deputy Attorney General Lisa Monaco told CNN that federal prosecutors were looking into the fraudulent elector certifications.
Forty-eight states have winner-take-all laws giving all their electoral votes to the top vote-getter in their states. Maine and Nebraska award two votes to the popular vote winner and give the remainder to the top-place candidate in each congressional district.
Faithless electors have emerged in the past, and 33 states and the District of Columbia have laws requiring electors to vote for the winner of the popular vote in their domains.
In 2016, a small group of Democratic electors pledged to vote for another candidate in the hopes of swaying Republican electors to vote for anyone but Trump. They were known as Hamilton Electors after a Federalist Paper in which Alexander Hamilton argued that the Electoral College should be an “intermediate body” that’s less exposed to the people’s “heats and ferments.”
Congress certified Trump’s Electoral College victory on Jan. 6, 2017, with then-Vice President Joe Biden 11 times gaveling down objections by Democrats to electors from several states.
On July 6, 2020, the U.S. Supreme Court unanimously upheld the constitutionality of the state laws requiring electors to vote for the winner of the presidential election in their separate states. It ruled that faithless electors in Washington and Colorado had acted illegally, and those states had the authority to penalize or remove them.
“The Constitution’s text and the Nation’s history both support allowing a State to enforce an elector’s pledge to support his party’s nominee — and the state voters’ choice — for President,” Justice Elena Kagan wrote for the court.
Four Democratic electors from Washington state who were part of the effort to encourage GOP electors to abandon their pledges were fined $1,000 each under their state’s law. The fifth Democrat cast his vote in Hawaii, where there is no penalty. The two GOP rogue electors came from Texas, which has no faithless elector law. (In Colorado, a Clinton elector cast his electoral vote for Republican John Kasich, but the state discarded his vote and replaced him with an elector who voted for Clinton.)
In 2020, Biden won the popular election by 7 million votes and stood to receive 306 of the 538 votes when the Electoral College met in December.
While the 2016 effort was aimed at influencing duly chosen electors, the 2020 push sought to create lists of electors who would vote for Trump in battleground states that he lost and where the Republicans falsely claimed there had been widespread election irregularities.
The House select committee has said “bogus slates of Electoral-College votes” were submitted in seven states — Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania and Wisconsin – in a ploy to overturn the results of the 2020 election.
“The so-called alternate electors from those states then transmitted the purported Electoral-College certificates to Congress, which multiple people advising former President Trump or his campaign used to justify delaying or blocking the certification of the election during the Joint Session of Congress on January 6th, 2021,” the committee said.
Attempt to Switch Slate ‘Resembled a Coup’
“Both issues stem from the Electoral College system, but differ in fundamental ways,” John R. Vile, a constitutional scholar and political science dean at Middle Tennessee State University, said in an email to FactCheck.org.
“The issue in the 2020 election was whether state legislatures disappointed with the voting majorities in their states had the power to substitute a whole set of electors pledged to Biden with another set pledged to Trump on the basis of perceived electoral irregularities,” Vile said.
“Had there been genuine evidence that state voting totals were inaccurate, states may have had power to decide which slate of electors should be reported from their states,” said Vile, the author of “A Companion to the United States Constitution and Its Amendments.”
“But Trump challenges to election counts (which included baseless challenges by Sidney Powell, Rudolph Giuliani, and Mike Lindell of MyPillow) were consistently and firmly rejected as unfounded by courts that examined the issue, so the attempt to replace one set of electors with another would have resembled a coup rather than an attempt to remedy electoral irregularities,” Vile said.
Noting that the laws barring faithless electors seek to uphold the will of voters, Vile said, “… the attempt to substitute alternate elector lists was designed to thwart this will.”
During a June 21 hearing of the House select committee, Arizona House Speaker Russell Bowers, a Republican, testified that he was pressured by Trump aides to participate in a lawless scheme in his state to remove Biden electors and replace them with Trump electors.
“You are asking me to do something against my oath,” Bowers recalled telling Giuliani, “and I will not break my oath.”
Editor’s note: FactCheck.org is one of several organizations working with Facebook to debunk misinformation shared on social media. Our previous stories can be found here. Facebook has no control over our editorial content.
Sources
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Gutman, David. “4 Washington state electors decided to not vote for Hilary Clinton in 2016. They were fined $1,000, went to court, and lost.” Seattle Times. 23 May 2019.
Hellman, Jessie. “Democratic elector in Hawaii votes for Sanders.” The Hill. 19 Dec 2016.
House Select Committee investigating Jan. 6, 2020 attack on the U.S Capitol. “Select Committee Subpoenas Seven ‘Alternate Electors’ From Seven States.” News release. 28 Jan 2022.
Johnson, Eric M. and Jon Herskovitz. “Trump wins Electoral College vote; a few electors break ranks.” Reuters. 19 Dec 2016.
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Perez, Evan and Tierney Sneed. “Federal prosecutors looking at 2020 fake elector certifications, deputy attorney general tells CNN.” CNN. 26 Jan 2022.
Polantz, Katelyn. “Federal investigation into Trump fake electors expands to multiple states.” CNN. 7 May 2022.
Svitek, Patrick, Bobby Blanchard and Aliyya Swaby. “Texas electors cast 36 votes for Trump, 1 for Kasich and 1 for Ron Paul.” Texas Tribune. 19 Dec 2016.
U.S. Attorney for the Southern District of New York. “Dinesh D’Souza Sentenced in Manhattan Federal Court to Five Years of Probation for Campaign Finance Fraud.” 23 Sep 2014.
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