This article is made possible through Votebeat, a nonpartisan reporting project covering local election integrity and voting access.
When Wisconsin voters took to the polls on Nov. 3, they were not actually choosing among Joe Biden, Donald Trump and third-party candidates. Rather, they were voting for a slate of 10 partisan electors who would pledge their support for the winner of the popular vote at the Electoral College.
The indirect process by which Americans elect a president has been seized upon by some Trump allies hoping to leverage unsubstantiated allegations of fraud in certain key states — including Wisconsin — to push forward a slate of electors who would support President Trump instead of President-elect Biden. The move would be in defiance of the outcome of the popular vote, which Biden won in Wisconsin by about 20,600 votes.
In an emergency petition filed Nov. 24 with the Wisconsin Supreme Court, a group of voters is asking for just that.
The Wisconsin Voters Alliance claims that more than 144,000 votes were illegally cast in the Nov. 3 election, including 96,000 from voters they claim falsely listed themselves as “indefinitely confined.”
Days after the election, Republican Assembly Speaker Robin Vos ordered an investigation into Wisconsin’s election results, alleging “mail-in ballot dumps and voter fraud.” Republican state Rep. Joe Sanfelippo said the results of that investigation could — and perhaps should — lead the state to nullify its outcome.
“If an investigation shows these actions affected the outcome of the election, we need to either declare this past election null and void and hold a new election or require our Electoral College delegates to correct the injustice with their votes,” Sanfelippo said in a Nov. 9 statement.
Vos has publicly said the Legislature would not become involved in changing the current system. But Tuesday’s emergency petition asks the court, which is dominated 4-3 by conservatives, to void the election and order that the “choice of the Presidential Electors revert back to the State Legislature.”
The legal action is the latest in a series of more than 30 lawsuits alleging fraud and impropriety filed by the Trump campaign and its allies in battleground states.
Most of those legal challenges have been thrown out or voluntarily withdrawn. Meanwhile, a partial recount initiated by the Trump campaign in Wisconsin’s Milwaukee and Dane counties has challenged several long-standing voting processes, with tens of thousands of ballots in question, although legal experts say discarding that many votes would be a longshot.
And battleground states that Biden won but which were subject to legal challenges have begun to move forward. Michigan, Pennsylvania and Nevada certified their results this week. Arizona is due to certify on Monday, and Georgia certified its results on Friday, but is conducting a second recount at the request of the Trump campaign. After a long delay, the Trump administration also has freed up funds for Biden’s transition.
According to state law, the results of Wisconsin’s election must be certified by Dec. 1. Under federal law, the winning slate of electors cast their votes in the Electoral College on Dec. 14. Legislators do not have a role in this part of the process, legal experts say.
Nevertheless, legal and political challenges to this year’s election have raised questions of whether a state’s election outcome can ever be subverted by officials who favor a different result.
“The short answer (to that question) is no,” said Paul Nolette, a professor of political science at Marquette University. “The longer answer is technically yes.”
A complex combination of state and federal law and the U.S. Constitution govern the administration of American presidential elections, including the Electoral College, Nolette said.
“Much of (the law) is not clear, and because it's been on the books for so long but not challenged in the way that we’re seeing now, it creates some avenues for messing around with, in ways that weren’t anticipated when these laws were passed,” he said.
Electoral College evolves
The Electoral College today is not like the one that the framers imagined, said Robert Alexander, a professor of political science at Ohio Northern University and author of the 2019 book, “Representation and the Electoral College.”
Electors were established by Article II of the Constitution and envisioned as having discretion, giving states some amount of control over their electoral results, Alexander said.
But over time, Electoral College norms shifted, leading increasingly to the system we see today.
The standard in Wisconsin and 47 other states is that the winner of the state’s popular vote takes all of that state’s electors. (In Maine and Nebraska, electoral votes are apportioned based on the statewide winner and the winner in each congressional district.)
The number of each state’s electoral votes is determined by the number of U.S. representatives and senators in Congress from each state, plus three electors from the District of Columbia. Presidential candidates compete for a 270-vote majority of 538 electoral votes. Unofficial results show Biden got 306 electoral votes to Trump’s 232.
The Electoral Count Act of 1887 was enacted to provide a framework during disputed elections and to determine the means by which states certify their election results.
But the law’s exact requirements are not entirely clear, said Nolette, because the Electoral Count Act is notoriously poorly written. But the spirit of the law is clear: The choice of the electors is meant to reflect the will of the people.
“While the state legislatures have the power to set up a system of choosing electors … once they’re chosen, the state legislature’s role is done,” he said.
As established under state law, officials from both the Democratic and Republican parties convene at the Wisconsin State Capitol and nominate one slate of electors per party, according to University of Wisconsin Law School professor Rob Yablon. Each slate contains 10 electors, one from each of the state’s eight congressional districts and two at large.
This year’s Wisconsin Democratic electors include Gov. Tony Evers and Lt. Gov. Mandela Barnes. The Republican electors include Mary Buestrin, a Republican activist and former co-chair of the Republican National Convention, and Robert Spindell, who sits on the Wisconsin Elections Commission.
After the electors meet to officially cast their votes, the results are transmitted to Congress, which meets in joint session to count the electoral votes on Jan. 6.
Barring a significant challenge under the Electoral Count Act — for example, evidence of widespread voter interference or election fraud — there are no more opportunities for the state Legislature to become involved, or to change Wisconsin’s handling of electors after the fact, Yablon said.
“Given that Wisconsin's elector selection process is set out in state statutes, it seems highly unlikely that the Legislature could unilaterally change the rules after the fact,” he said in an email. “At a minimum, the Legislature would need to pass a new statute.”
Evers, Wisconsin’s Democratic governor, would be expected to veto any such effort.
In an op-ed published Monday in the New York Times, election law expert Richard L. Hasen wrote that if the Republican-controlled legislatures opt to send their own slates of electors — in contravention of the popular vote — governors can submit a slate reflecting the popular vote, and “federal law favors Electoral College slates sent in by governors.”
He added that no matter what happens, “Mr. Trump is out of office on Jan. 20 under the Constitution’s 20th Amendment.”
Fraud allegations dismissed
Yablon said there is one main opportunity, under the Electoral Count Act, for a state to withhold its electors, or submit an alternate slate to Congress.
“If state elections officials or a court determined that there were, in fact, irregularities substantial enough to swing the election result, then the aggrieved candidate could seek to be certified as the winner, and their electors could then be named,” he said. “But, to be clear, there’s no evidence of systematic fraud.”
Judges who have been evaluating such allegations in other battleground states have reached the same conclusion. On Saturday, a federal judge ruled in a Pennsylvania case that there was no evidence of fraud to justify disenfranchising millions of voters.
Moreover, added Jeffrey Mandell, a Wisconsin attorney focused on election law, under Wisconsin state law, the exclusive remedy for allegations of fraud, irregularity or mistake during voting or canvassing is a recount, which is currently underway. The Trump campaign is seeking to nullify 170,000 absentee votes cast by early in-person voters in Dane and Milwaukee counties.
Legal experts see that as unlikely. But, said Nolette, “We’re in uncharted territory.”
Amid questions of whether an entire slate of electors can be overturned is the issue of whether individual electors may deviate from their chosen candidate.
These electors are sometimes referred to as “faithless electors.”
Indeed, when the Electoral College was first established, electors were envisioned as “wise and judicious,” able to exercise their own discretion, Alexander said. Alexander Hamilton argued that such a system protected voters from electing manipulative leaders. Over time, Alexander said, the vision that framers had, “that electors would be free agents” changed to one in which “they would be obedient and loyal.”
“Now the expectation is that they would not deviate from the will of the people,” Alexander said.
In 33 states including Wisconsin and Washington, D.C., the law explicitly forbids casting a faithless vote. The U.S. Supreme Court in July unanimously upheld the right of states to have laws forbidding faithless electors — further entrenching the notion that electors exist to reflect the will of the voters.
Nevertheless, faithless votes do occasionally happen. In 2016, there were seven faithless electors, with two Republicans and five Democrats casting ballots for candidates other than Trump and Hillary Clinton respectively.
In Wisconsin, the investigation Vos ordered is ongoing. And as of Wednesday, the recounts in Dane and Milwaukee counties were continuing. The result so far is 73 fewer votes for Biden, and 21 fewer for Trump, out of more than 349,000 votes counted.
Although it appears this bid to circumvent the Electoral College process will be unsuccessful, Nolette cautioned that, in a closer election, this complex process could play a more pivotal role by creating “a political precedent for this process to be abused in the future.”
The nonprofit Wisconsin Watch (wisconsinwatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.