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Trump’s two remaining points of leverage on the election and how he may use them: An FAQ

Members of the Mississippi electoral college sign certificates of the vote in the process of formally casting their electoral votes in the 2016 election. (Rogelio V. Solis/AP)
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Five hundred thirty eight Americans will meet in small groups in each of the 50 states and D.C. on Monday to formally elect the next president of the United States. It’s a normally rote event that, in this endlessly tumultuous year, has taken on added significance and scrutiny. I mean, here you are reading an article about the electoral college vote, something that, in years past, probably never struck you as particularly interesting.

With any luck, this year will end up being similarly uninteresting. But we get ahead of ourselves.

Below, a number of questions or statements that I imagined someone might pose, followed by the explanations and answers I’d offer. It’s like an Aaron Sorkin show.

Pretend I don’t know what the electoral college is and explain it

For all of the United States’ rightful boasting about having the world’s longest continuous democracy, the men who drafted the Constitution weren’t always convinced the voters could be trusted. They opted against direct election of senators, instead letting state legislators pick. (Rampant corruption led to direct senatorial elections a century ago.) Similarly, they opted against having the president and vice president be elected directly, instead giving the job to an ad hoc group, the electoral college, which would be cobbled together every four years and determine whom to select. Here, too, the Founding Fathers opted to empower state legislatures to identify how the electors were picked.

There are reasons for the system beyond simply avoiding a popular vote. (The popular vote was seen as problematic for a number of reasons, including that Southern states opposed the idea given that so many of their residents were enslaved Black people.) Having electors meet in each state, for example, offered a level of protection from direct interference from outside parties.

Eventually, states simply linked elector selections to the popular vote anyway. The electors are generally identified based on their loyalty to the party's candidate; both Bill and Hillary Clinton are electors in New York, for example. Sometimes electors vote for a candidate other than the one they're supposed to. Such “faithless electors” may face legal repercussions, after the Supreme Court in July determined that states could punish those who failed to vote as instructed by the voters.

What’s happening today?

The Constitution established the electoral college but most of the details of its implementation are outlined in subsequent laws. The meeting and vote of the electors, for example, is set as occurring on “the first Monday after the second Wednesday in December” after the election. In other words, on Monday.

The electors determined by the voters in each state will meet in their states to formally cast their votes for President Trump or President-elect Joe Biden. A Congressional Research Service report delineates how it works:

The electors vote by paper ballot, casting one ballot for president and one for vice president. The electors count the results and then sign six certificates, each of which contains two lists, one of which includes the electoral votes for the president, the other, electoral votes for the vice president, and each of which includes the names of people receiving votes and the number of votes cast for them.

These are called “certificates of the vote” and are coupled with “certificates of ascertainment” — documents signed by state executives formally identifying the electors as the state's legitimate electors. Three of the six sets of documents are then sent to D.C., where they must be received by Dec. 23. (One copy goes to the president of the Senate — Vice President Pence — and two to the National Archives.) Two of the other three go to the state and one to the judge of the U.S. district court in the place where the electors meet for safekeeping.

All this confirms what the voters have already determined.

That sounds redundant

It usually is, because much of the country has intentionally sought to relegate the electoral college to formality status.

It isn’t this year, though, because of Trump’s obstinate refusal to acknowledge he lost the election. The electoral college is still the formal vehicle for electing a president and, as such, offers those seeking to disrupt the process a focal point at which to potentially do so.

That the voting is occurring in geographically disparate locations by design actually is helping to dispel any effort to intervene. In Michigan, one of the states on which Trump has focused his false claims of rampant fraud, officials have taken unusual safety precautions to ensure electors can meet without disturbance. Hopefully none of the elector meetings have problems convening.

There’s another way in which things could get wonky after today that is worth fleshing out. States identify electors before the presidential election itself, meaning there are identified slates of electors for Biden, Trump and even third-party candidates, like Libertarian candidate Jo Jorgensen. Technically, there’s nothing stopping those electors from meeting and casting their own votes for their candidates and then submitting their votes to Washington.

On Monday morning, Trump adviser Stephen Miller announced on Fox News that Trump electors in some states would do exactly that.

Update: When I spoke with an expert on this subject in November, he speculated that there might also be third-party efforts to submit slates of electors. That appears to have occurred in Arizona.

What happens next?

After the electors meet and their votes are received in Washington, Congress meets in a joint session to formally count the votes. That’s happening on Jan. 6, 2021, after the new Congress is seated. Since this is another redundant but essential part of determining the president, it’s another point at which Trump’s team might try to gum up the works.

On that day, states will be read out in alphabetical order. The state's electoral votes will be opened and tallied. If one member of the House and one member of the Senate object to a state's slate, though, it can be challenged.

On what basis might that happen? Well, if Trump electors meet in states Biden won and submit those votes to Congress, as Miller threatened, Congress has to consider them. The House and Senate would retire to their chambers to determine how to proceed. If the House and Senate both vote to accept the Biden electors, then the dispute is resolved. Since the Senate will at that point have only 99 members (as the results of the Georgia runoff elections are being certified), only two Senate Republicans would need to reject an invalid Trump slate for that to happen.

If the House and Senate disagree, though, with each chamber identifying a different slate, there's a tiebreaker built into the process: the certificate of ascertainment from a state.

“[I]f the two Houses shall disagree in respect of the counting of such votes,” the Electoral Count Act of 1887 states, “then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.”

In each state that Trump has tried to contest, the executive has already approved Biden’s electors. Here are the certificates of ascertainment for those states: Arizona, Georgia, Michigan, Nevada, Pennsylvania and Wisconsin. On each, you’ll notice that the state executive has offered a signature and, on each, you’ll see the state’s seal.

It’s 2020, so I must ask: What could go wrong?

When I spoke with an expert about this last month, he explained a few esoteric, complicated ways in which the process could nonetheless be interrupted, depending on the willingness of Pence — who will oversee the counting as president of the Senate — to do so. In lieu of giving anyone any ideas, I'll just note that one of these scenarios essentially involved the counting itself grinding to a halt and the tally of electoral votes not being completed. Should that happen, we can talk about that on Jan. 6.

There’s one bit of good news, though: That count will take place next year, outside of 2020′s nefarious, toxic clutches. Maybe, just maybe, our inclination to assume worst-case scenarios will no longer be necessary.