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Donald Trump Tried to Bend the Electoral College His Way: Was That Illegal?

Donald Trump in the Oval
President Donald J. Trump participates in a Christmas Day video teleconference from the Oval Office Tuesday, Dec. 25, 2018, with military service members stationed at remote sites worldwide to thank them for their service to our nation. (Official White House Photo by Shealah Craighead)

Did Donald Trump break the law? “Fake electors” doesn’t sound good. Nothing labeled fake sounds good. But with electors—well, we are talking about the democracy here, as the House Select Committee on the Jan. 6 Attack on the Capitol pressed in its fourth hearing in June.

But did Donald Trump’s campaign do anything illegal or wrong by trying to sway individual states to bend the Electoral College outcome? It depends, but probably not.

First, let’s separate election officials—such as secretaries of state or local election clerks—from state legislators.

Threats of violence against public officials is always wrong and criminal—whether it’s local election officials or Supreme Court justices. Threats aside, even pressuring a state or local election official (who usually have administrative roles) might be very sketchy.

But in and of itself, lobbying state legislatures on electoral votes – while unusual and arguably undemocratic – wouldn’t necessarily be improper. The Constitution gives state legislatures the authority to appoint electors as they see fit. Importantly, mostly during the era of Jacksonian Democracy, state legislatures passed laws to give their state’s electors to the winner of the state’s popular vote.

States have flexibility, as 48 have a winner-take-all system, while Maine and Nebraska award electors based on congressional districts. Another 32 states and the District of Columbia have laws that impose fines and penalties for “faithless electors” that opt to vote for someone other than their state’s popular vote winner. The Supreme Court upheld the right of state legislatures to pass such laws.

State legislatures have always had the capacity to claw back the authority to appoint presidential electors without any voter input. But these lawmakers are like all politicians. The top priority is getting re-elected and clawing back this power would anger a lot of voters. The only legislatures that have passed laws to ignore the will of their state’s voters have been those voting to join the National Popular Vote Interstate Compact, committing to award their electors to whatever candidate carries the popular vote regardless of the votes of their state residents. The compact will not take effect until enough states with 270 electoral votes join.

In fact, while Donald Trump lost dozens of post-election lawsuits – and we saw the U.S. Supreme Court settle the 36-day presidential contest two decades earlier—it would be far more in line with the Constitution if state legislatures settled the arguments.

At the Tuesday hearing, Republican speakers of the House of Representatives from Arizona, Pennsylvania and Michigan either testified live or were shown from a video deposition, talking about some of the tactics used to get them to appoint an alternative slate of electors.

The strategy and tactics from Team Trump often seemed patently lame if it’s true that lawyer Rudy Giuliani said, “We’ve got lots of theories, we just don’t have the evidence,” or John Eastman, who supposedly said, “just do it and let the courts sort it out.” Eastman, of course, came up with the tortured legal theory that a vice president can pick the winner.

Nevertheless, there is precedent for a competing set of electors, after disputes in Florida, South Carolina, and Louisiana during the 1876 post-election standoff between Republican Rutherford B. Hayes and Democrat Samuel Tilden. The difference in that year was those electors were recognized in those states.

Moreover, it’s worth recalling months before Election Day in 2020, Biden supporters suggested he should call for Democrat governors in states Trump carried to send pro-Biden electors. That doesn’t mean Biden would have done it. But he never had to make that decision.

After the 2016 election, a group that called itself the Hamilton Electors, Harvard Law professor Lawrence Lessig, a group of Hollywood stars, Democratic members of Congress and others called for the Electoral College to reverse Donald Trump’s victory over Hillary Clinton.

Once the Electoral College casts votes in 50 state capitals its essentially over, no matter how much any candidate believes the election might have been stolen. It’s the Electoral Count Act passed to avoid another 1876-style standoff—that allows members of Congress to challenge the certification of states.

Given the committee’s one-sided nature, it’s important to take members’ allusions to some breath-taking revelations with a grain of salt until they provide some more context. In some cases, they have provided context. In others, still waiting.

Moreover, there are scales for describing evil occurrences. Culprits should be held accountable. But equating a disgusting, violent, terribly unpatriotic riot on the Capitol with a full-scale insurrection is perhaps as bizarre a theory as one that a vice president can unilaterally decide an election. It makes wonderful Twitter chatter—and respectable primetime ratings—to say democracy was hanging by a thread, even if it’s not true.

Fred Lucas is chief national affairs correspondent for The Daily Signal and co-host of “The Right Side of History” podcast. Lucas is also the author of “Abuse of Power: Inside The Three-Year Campaign to Impeach Donald Trump.”

Written By

Fred Lucas is chief national affairs correspondent for The Daily Signal and co-host of "The Right Side of History" podcast. Lucas is also the author of "Abuse of Power: Inside The Three-Year Campaign to Impeach Donald Trump."



  1. Quartermaster

    June 23, 2022 at 11:18 am

    If vote fraud took place, then the election is never “over.” Theer was massive fraud in 2020, and TPTB have hoped the problem would go away if they ignored, diverted attention, or simply yelled “no fraud,” long enough. Everything that Biden does is illegal as he was not legitimately elected. States that ignore the fraud don’t change that.

    • mcswell

      June 23, 2022 at 2:01 pm

      Massive fraud: sure, I hear that the Arizona audit uncovered nine–count ’em, 9–fraudulent votes. All nine were for Trump.

      • Mike

        June 24, 2022 at 7:57 pm

        That’s fake they found almost 200,000 illegit votes.

        • Tokyo Woes

          June 25, 2022 at 6:59 pm

          please. kindly identify who is they.

  2. GhostTomahawk

    June 23, 2022 at 3:16 pm

    What is fraud is winner take all systems. This invalidates the voting process. If a district went for a candidate their electoral vote should count for them not the winner of a popular vote. That’s the sole reason for the electoral college. If this was the case, the 2020 election would look much different. 2/3 of CA is red but SF LA and SD ensure the states 55 votes go blue. That is election fraud and it needs to stop.

    • Terry

      June 23, 2022 at 4:18 pm

      Right, heaven forbid the majority of the people have a say in their government. Here’s an idea: perhaps the right-wing come up with policies that actually benefit the majority of the people.

    • Tokyo Woes

      June 25, 2022 at 7:12 pm

      That is not election fraud. That is, with your indulgence, a system with which you do not agree – those are 2 different things. Should you wish to change what has been enacted by the people of California, your eager efforts may be effective at changing that in Sacramento. Unfortunately, in the case of your argument, votes are not recognized by real estate held but rather by individuals no matter where they live. Again, should you wish to change the one man one vote concept to one man’s real estate holdings determine voting ‘power,’ I, again, recommend Sacramento, the state capital, as the place to make changes in the electoral laws you misrepresent as fraud. As an aside, I would suggest fraud would be the representation that the dollars you donate to support a cause or organization, would actually not go to that cause or organization but into someone’s personal pocket; wherein, a false case was made with intent to fleece someone. The difference between fraud, in this case, is that while Trump knew he was lying to fool others, [fraud] we extend the caveat: you do not know what you are saying is mistaken and thus is not a fraud.

  3. phil stacy

    June 23, 2022 at 7:12 pm

    Democrats are trying to get a one party system by eliminating the electoral college. Democrats want to end voter control and eliminate any legal restraint on their political power. China is the Democrat role model.

  4. Marc

    June 23, 2022 at 9:31 pm

    This is idiotic. Trump wasn’t trying to have the VP overturn the election. The intent was to have the results returned to the states because Everyone knew that there was no way that Biden could have won legitimately. It’s called, challenging an election. It’s not a difficult concept.
    Biden sat in his basement for much of 2020, when the old thing emerged he could barely get 20 people to stand in circles drawn on the ground & many times wasn’t able to get anyone to attend & had to cancel rallies.
    Massive evidence has since been found indicating fraud on a scale unheard of in the country. The mainstream media, notoriously biased towards the Marxist left, has refused to give any of this any play & the judiciary ignoring it also is an issue.
    This piece is ridiculous & written in ignorance, of the context of the situation & reality. I bespeaks an obsession. Fortunately, I use Thunderbird & an easily delete anything by this author as it comes in the door.
    We’ve all moved on, I suggest any libs reading this do the same. I don’t visit this site to hear political opinions.

  5. Mike

    June 24, 2022 at 8:06 pm

    There was massive voter fraud in the swing states. Since when do states shut down counting? They did it because they had to print new fake ballots. There’s tons of evidence from audits and 2000 miles etc. if a election shows fraud there is a way per the constitution to void the electors by the state leg declaring there’s fraud and choosing a new slate. It requires the election to be free of fraud. The founders wrote it in. There’s so much fraud that I can’t spend all night writing here about it. It was a well corodinated big tek, rino and dnc officials in state and local gov, and many other contributors to overthrow the duly elected president with a fraud op. Biden could not get 50 people at a rally. Voting machines flipping millions of votes to him and them the dnc fighting to stop a audit of them for only one reason and that’s because they know the fraud would show. Our republic was overthrown. The author writes about the Jan 6 investigation but it’s a kangaroo court and the rights of the other side are trampled on. There going to try to indict trump to stop him from winning next time but there always DeSantis even though he a fake imitator of trump and the rinos are funding him from Wall Street. The dems prob would be better to have trump win to salvage their party after there destruction of the economy.

  6. RepublicansLovePutin&hateAmerica

    June 25, 2022 at 11:43 am

    Anyone who thinks the 2020 election was illegitimate or pro orange fat chimp is a traitor who needs to be shot in the head.

  7. Tokyo Woes

    June 25, 2022 at 6:58 pm

    Republican Rutherford B. Hayes and Democrat Samuel Tilden, your ‘example’ for anyone who’d like to look, was one where votes may well have been fraudulent, one distinguishing difference in 2020 – um, I guess I have to say it. Biden actually won, thus…

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