Could lawmakers ‘mess’ with Wisconsin’s 10 electoral votes? Possibly.

By Anya van Wagtendonk

Wisconsin Watch

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 Tuesday with the Wisconsin Supreme Court, a group of voters is asking for just that.

The group claims that more than 144,000 votes were illegally cast in the Nov. 3 election. That includes an estimated 96,000 from voters who listed themselves as “indefinitely confined” — and therefore not required to present a photo ID — but whom the petitioners claim were not. The petition also alleges that more than 12,000 votes cast for Republicans were not counted.

The Wisconsin Voters Alliance also claims that election officials violated state law by accepting more than $6 million from a nonprofit financed by billionaire Facebook founder Mark Zuckerberg. The Center for Tech and Civic Life funded activities including boosting absentee voting and poll worker training in Green Bay, Kenosha, Madison, Milwaukee and Racine.

The group has an ongoing lawsuit against the cities making the same claim.

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.

In a recent statement to the media Vos said the Legislature would not become involved in changing the current system. “Under our statutes, we have no part in the process,” he said.

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 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 unique administration of American presidential elections, including the Electoral College, Nolette said. Typically, that complexity does not enter into voters’ minds. But in this atypical election cycle, “The whole thing is kind of a mess,” he 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 that we have today is not like the one that the framers imagined, said Robert Alexander, a professor of political science at Ohio Northern University and the author of the 2019 book, “Representation and the Electoral College.”

Article II, Section 1 of the U.S. Constitution lays out the concept of electors, how they are appointed, and when and how they will vote for a given candidate.

At the time, electors were envisioned as having discretion, giving states some amount of control over their electoral results, Alexander said.

But the concept was “fragmented” in its design, said Alexander, and throughout the ensuing decades, Electoral College norms and law shifted, leading increasingly to the system we see today.

The standard in Wisconsin and in 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.) State laws do differ on specifics — for example, the exact process of verifying the results and the precise body that does so.

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 United States has had contentious elections before. During the 1886 election, four states’ results were disputed, and Congress had to step in. 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.

Casting electoral votes “is usually such a pro forma thing that no one even thinks about it,” he said.

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, it doesn’t mean that you set up a system of choosing electors, and then if you don’t like those electors, you replace them,” he said. “It’s setting up the process in the first place; then once they’re chosen, the state legislature’s role is done.”

As established under state law, on the first Tuesday of October in presidential election years, 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.

They are typically chosen based on loyalty to the party. For example, 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.”

Even if that occurred, Yablon added, such a move would functionally “nullify the votes of everyone who cast their ballots in reliance on the prior rules, which raises federal constitutional concerns.” And Evers, Wisconsin’s Democratic governor, would be expected to veto any such effort.

In an op-ed published Monday in the New York Times, Richard L. Hasen, author of the book “Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy,” 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.

“We can expect Democratic governors in Michigan, Pennsylvania and Wisconsin to submit slates reflecting their voters’ choice of Mr. Biden,” he wrote. “On top of that, Democrats will control the House, which will not accept rogue alternative electors …. And even if three state legislatures engaged in broadly antidemocratic action by purporting to appoint their own slates of electors, 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

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 massive fraud or other impropriety has undermined the integrity of the election.

“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,” Yablon 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 the legal arguments lacked merit and 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.

Wisconsin began a partial recount of its results on Friday. In arguing for the recount, the Trump campaign alleged that several longstanding state voting practices were illegitimate.

One of those allegations targeted the state’s in-person early absentee voting process. If deemed credible and supported in court, such a challenge could lead to 170,000 ballots cast in that way in Dane and Milwaukee counties to be tossed out.

Legal experts see that as unlikely. But as Nolette noted, “We’re in uncharted territory.”

“It would be highly problematic,” Nolette said of the possibility of the recount resulting in a significant loss of ballots. “Clearly neither the Constitution nor the Electoral Count Act meant for that result to occur.”

State law determines if a state’s slate of electors must support the popular vote winner. Technically, Nolette said, states could decide that, in the future, the popular vote winner doesn’t automatically get the Electoral College votes. But they can’t do that after the election, he said.

There is also another opportunity for the slate of electors to face a challenge. In Congress, if one member of each chamber — the House and the Senate — decides to challenge a state’s slate, that opens the door to a maximum two-hour debate, he said.

This would not stop the constitutionally mandated presidential inauguration from taking place, said Nolette, even in the extreme-case scenario that every state’s outcome is challenged. But the extent of challenges that are presented could “give a good indication in early January of how polarized things still are.”

Faithless electors

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 this would protect voters from electing manipulative leaders and shield the United States from foreign interference.

But this system did not predict the rise, strength and eventual factionalism of political parties. As a result, 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.

Over time, that expectation was written into law. In 33 states including Wisconsin and Washington, D.C., the law explicitly forbids casting a faithless vote. In Wisconsin, as in 15 other states and the District of Columbia, there is no formal penalty for doing so. In some other states, a faithless vote can be invalidated, and its elector may even be fined.

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. It was also the first time since 1972 that an elector crossed party lines, when three Democrats voted for Republican Colin Powell.

Mandell said these moves typically come when a candidate is controversial within his or her own party, unlike Biden, whom he described as a “mainline, center-of-the-party candidate.”

Window closing for Trump

In recent days, as the Trump campaign’s legal challenges have sputtered, some Republican leaders signalled that their states would certify their results.

In Michigan, after several top state Republicans met with Trump at the White House for a closed door meeting Thursday, they said that they would honor their state’s results — a 154,000-vote victory for Biden.

“We will follow the law and follow the normal process regarding Michigan’s electors, just as we have said throughout this election,” Michigan Senate Majority Leader Mike Shirkey and Speaker of the House Lee Chatfield said in a joint statement on Friday.

“Allegations of fraudulent behavior should be taken seriously, thoroughly investigated, and if proven, prosecuted to the full extent of the law,” they added. “And the candidates who win the most votes win elections and Michigan’s 16 electoral votes. These are simple truths that should provide confidence in our elections.”

On Monday, Michigan certified its results.

After the Pennsylvania court decision, Republican U.S. Sen. Pat Toomey released a statement congratulating Biden and Vice President-elect Kamala Harris.

“With today’s decision by Judge Matthew Brann, a longtime conservative Republican whom I know to be a fair and unbiased jurist, to dismiss the Trump campaign’s lawsuit, President Trump has exhausted all plausible legal options to challenge the result of the presidential race in Pennsylvania,” Toomey said.

That state certified its results on Tuesday.

On Friday, Georgia Secretary of State Brad Raffensperger certified the results there, a state where Biden narrowly squeaked by with a 12,000-vote lead over Trump, after a hand recount.

“I live by the motto that numbers don’t lie,” Raffensperger said on Friday. “The numbers reflect the verdict of the people, not a decision by the Secretary of State’s office or of courts or of either campaign.”

And in Nevada, a similar challenge to stop the certification of votes was dismissed on Friday, clearing the way for that state to certify its results for Biden, which Nevada Secretary of State Barbara Cegavske did on Tuesday.

As for Wisconsin, the investigation Vos ordered is ongoing. In an email newsletter last Wednesday, he said that Assembly Republican staff were still sorting through complaints and allegations.

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.

Sanfelippo, who had floated the idea that the results of Vos’ investigation could lead to electors being flipped, did not respond to Wisconsin Watch’s requests for comments.

Although it appears that 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.

“When it comes to 2020, right now I cannot anticipate any of this going anywhere in any state,” Nolette said. However, “What happens if you get an even closer election?”

“Could this open the door for something like that in the future? I do think so,” he added. “It creates not a legal precedent, but 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.