Plan A was for Trump to win a majority of votes in states sufficient to get to 270 Electoral College votes and thus win the Presidency outright. That ship has sailed.
Plan B was for Trump to hang onto all swing states he won in 2016 except Pennsylvania, and keep Pennsylvania close enough to win by successfully challenging mail ballots received after election day. Based on statements by Pennsylvania’s secretary of state, the Biden margin absent those late-received mail ballots far outnumbers the late-received mail ballots. (Trump is attempting similar strategies in other states, notably Nevada, where he has challenged about 3000 ballots allegedly mailed by non-residents of Nevada, but the challenged ballots in Nevada, and as far as I know, other states, also do not amount to enough to overcome Biden’s margin.) Accordingly, that ship has also sailed.
Plan C is for GOP-controlled legislatures in the 2016 Trump states that flipped to Biden in 2020 to submit alternate, pro-Trump slates in the Electoral College to counter the certified Biden slates submitted by those states. A variant involves the GOP governors and secretaries of states in some of those states to refuse to submit certified slates, then induce the GOP legislatures to submit pro-Trump slates as the only slates from those states, together with GOP legislatures from other flipped states submitting alternative pro-Trump slates. (The variant scenario is relevant because it would be legally more difficult for Congress to refuse to accept the electors from states that submit only one slate of electors, whereas if competing elector slates are submitted the two possible outcomes are that Congress does not accept, and therefore does not count, either slate, or it accepts the governor-certified slate.)
The alternate electors strategy is based on language in Article II, Section 1 of the Constitution:
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
This post is not concerned with whether Plan C is legally viable, i.e., whether the above language means that state legislatures may Constitutionally “direct” an alternative slate of Electors to be submitted. There are strong arguments against the idea, involving an interplay between other language in Article II, the 14th Amendment, federal law, and even state law in each relevant state. This paper discusses the procedures at issue. They are fiendishly complicated and precedent is far from well-established. Nevertheless, this article argues that state legislatures cannot overrule the vote. My point is not that Plan C will pass Constitutional muster.
This post is also not concerned with how difficult it would be as a practical matter for Trump to pull off Plan C. To do so, Trump will have to corrupt several state legislatures and/or governors and secretaries of state to throw out the will of the voters. That is a tall order. The Secretary of State of Georgia is already on record pushing back strongly against pressure from Sens. Perdue and Loeffler. And a couple of the relevant state legislatures are not even in session. My point is not that Trump will pull this off.
Rather, the purpose of this post is to attempt to illustrate the range of possibilities that exist for scenarios where flipped 2016 Trump states attempt to submit alternate Electors. In short, this analysis is intended to reverse-engineer the Trump Plan C playbook.
Feel free to offer corrections or additional scenarios in the comments. If you want to discuss the likelihood of Trump prevailing on the relevant legal questions identified, knock yourself out. Just don’t flame me for not putting that discussion in this post. I have views on the legal issues (the stronger arguments generally are against Trump), but again, that is not the purpose of this post.
Some preliminary facts should be kept in mind. First, the possible alternate Electoral College slates come from PA (20 EVs), GA (16), MI (16), AZ (11), and WI (10). Each of these states has a GOP-controlled legislature. In addition, NV (6 EVs) is part of the consideration under some scenarios because, although Nevada has a Democrat-controlled legislature, there is at least a theoretical possibility that its Republican Secretary of State won’t certify the Biden victory, thus NV might not submit a certified slate of Electors at all.
My base assumption for how the EV vote comes absent Plan C is that Biden holds onto leads in AZ and GA, Trump holds onto lead in NC. Accordingly, I assume Biden is sitting on 306 EVs absent GOP Plan C ratfuckery.
Finally, a few major legal variables are relevant to the analysis:
- May a state legislature Constitutionally submit an alternate slate of Electors chosen by the state legislature after Election Day? (I believe it is likely SCOTUS would rule that they can submit alternative slates but that the decision which slate to accept is up to the joint session of Congress that convenes to ratify the Electoral College vote, which hardly settles the issue.)
- If so, how does Congress, which sits in joint session on the issue, decide between the alternate slates?
- Does the Constitution and/or relevant federal law provide that when alternate slates of Electors are submitted by a state, Congress must determine which to accept based on (1) accepting the slate certified by the state’s governor (which in most instances under state law means the slate certified by the Secretary of State), or (2) must it disregard both slates entirely? A third alternative is that SCOTUS not only rules that the alternate slates can Constitutionally be considered and also would direct Congress which slate to accept. Although unlikely, this alternative is included where relevant below. (Note that each House decides separately, which could lead to neither slate being initially accepted by both Houses, which arguably triggers a further tie-breaker rule to the effect that either the slate submitted by the governor controls, or no EV is accepted from the dual-slate states. See discussion here.)
- Does the Constitution provide that in order to win, a candidate must receive a majority of all possible Electoral College votes (270), or does it merely provide that the victor must receive a majority of the Electoral College votes submitted to and accepted by Congress? (The 12th Amendment provides that the winning candidate must receive “a majority of the whole number of Electors appointed”. Precedents are on inconclusive as to whether this means all possible Electors or only those included in the count. See discussion here. This question could be initially resolved by the joint session of Congress but any result will undoubtedly go before SCOTUS.)
Without deciding the above questions, below I game out some of the outcomes:
Plan C Scenarios where Trump wins:
1. SCOTUS rules alternate slates submitted by GOP-controlled legislatures are Constitutional and Congress throws out all EVs with alternate slates and SCOTUS rules it takes 270 to win rather than merely a majority of EVs accepted:
The House decides, with one vote per state delegation, if neither party receives 270 EVs. The GOP controls 26 House delegations to 24 for Democrats. Thus, with Biden at 306, Trump needs to knock out 37 Biden EVs to bring Biden down to 269. The path with the fewest state legislatures Trump needs to corrupt is to submit alternative Trump slates from PA, plus either GA or MI, plus one more, to get Biden under 270 and throw the race to House of Representatives where Trump wins 26-24.
2. SCOTUS rules alternate Elector slates are Constitutional, GOP SoS/governors refuse to certify a Biden win and GOP legislatures in those states submit a Trump slate (thus, Congress is presented with only a Trump Elector slate in those states, not alternate slates), and GOP legislatures in other flipped states submit alternate slates (GA has a GOP Secretary of State and Governor; AZ has a GOP Governor but a Democratic Secretary of State; this scenario assumes both states submit a Governor-certified Trump slate). [EDITED to say AZ has a Democratic SoS.]
Congress accepts the GOP-only slates from AZ and GA. Trump’s total rises and Biden’s falls by 27 EVs; Biden leads 279 to Trump 259. Next, Congress rejects all EVs from states with competing slates, either because SCOTUS rules they must or Congress so votes. Biden loses, but Trump does not gain, EVs from WI, MI, and PA, a total of 46 EVs. Trump now leads 259-233. Trump wins regardless whether SCOTUS rules the winner must have 270 EVs (because if no one gets to 270 the decision is then thrown to the House, where as previously noted Trump wins 26-24) or if SCOTUS rules that winner only needs to have a majority of EVs accepted (because Trump has a majority).
[EDITED] Note: If GA but not AZ submits a Governor-certifed Trump slate, while AZ submits a certified Biden slate and a competing legislature approved Trump slate, Trump still wins 248-233.
3. SCOTUS rules alternate Elector slates are Constitutional and Congress accepts the alternate slates either by vote (unlikely) or because SCOTUS tells Congress they must accept the alternate slates.
Trump needs any three states to win. WI, AZ and either MI or GA result in a tie, broken by the House in Trump’s favor as noted above. All other variants result in an outright Trump majority.
4. SCOTUS rules alternate Elector slates are Constitutional, alternate Trump slates are submitted for all flipped states (AZ, WI, MI, PA, GA), but the Democratic governors of WI, MI and PA certify and submit Biden slates. The House disallows the Trump slates and accepts the Biden slates, the Senate does the opposite, thus neither slate is accepted by both in the contested states. If no contested votes count, Biden would have a majority of EVs but would not reach 270, so the outcome depends on whether the winner is a majority of all possible EVs or a majority of those accepted. If the latter the decision is thrown to the House, voting by state delegation, and Trump wins.
Plan C Scenarios where Trump falls short:
1. GOP Secretaries of State and Governors refuse to certify a Biden win in GA, AZ and NV, GOP legislators in those states submit Trump slates, which are accepted by SCOTUS and Congress, but no alternate slates are submitted by legislatures of WI, MI, PA. (Note: NV has GOP SoS but Democratic governor. I have not looked at NV state law to determine whether the governor can certify the result absent certification by the SoS.) (Biden 273 EV.)
2. GOP Secretaries of State and Governors refuse to certify Biden’s win in GA, AZ and NV, GOP legislators in those states submit Trump slates, which are accepted by SCOTUS and Congress; GOP submits alternate slates in WI, MI, PA, but Congress accepts the Biden slates from those states certified by the Dem SoS/governors and SCOTUS does not rule or accepts Congress’ decision. (Biden 273 EV.)
3. Same as Scenario 4 above for Trump, except all flipped states submit two slates, a Trump slate done by the GOP legislature and a Biden slate certified by the governor. The House accepts the Biden slate, the Senate accepts the Trump slate, and the tie-breaker (probably decided by SCOTUS) is that the governor-certified slates controls. (Biden 306 EV.)
