- Could Trump really steal the election
in the Electoral College?
- It's certainly possible.
- [Reporter] That's constitutional law expert,
Lawrence Lessig.
And out of all the nightmare scenarios
about what could happen after the 2020 election,
he says the most alarming is that Trump and his allies
could try to steal the election in the Electoral College
if Democrats don't take control of Congress
in November.
That's because the election isn't over
when you cast your vote.
After the election results are tallied in November,
a group of electors from your state
will be appointed to the Electoral College.
The electors will then vote
for president and vice president on December 14.
Those Electoral College votes will then be sent to Congress
in a letter signed by your governor.
And on January 6,
both chambers of Congress in a joint session,
chaired by Vice President Mike Pence,
will meet up to read those votes out loud and certify them
thereby officially electing the next president
of the United States.
- Now, usually the states act in good faith,
appointing just one slate of electors
who vote for whoever wins your state's popular vote.
But this isn't guaranteed.
The Constitution gives the state legislatures
the power to appoint electors in any way they see fit.
And the Supreme Court has suggested, maybe unintentionally,
that even after you have voted,
the legislature can "take back the power
to appoint electors" from you
and produce their own slate of electors as they see fit.
- [Reporter] That means in a heated election year,
when one side is already claiming
that they won't accept the results,
it's possible we could see both parties attempt
to send two different slates of electors to Congress,
one for Biden and another for Trump.
And the reason this is so concerning
is because it's happened before.
In the election of 1876,
between Republican Rutherford B. Hayes
and Democrat Samuel Tilden,
the election came down to three contested states.
Both parties claimed their candidate won in each state.
So both parties sent their own slates of electors
to Congress from all three states,
one slate for Hayes and another for Tilden.
- According to the Electoral Count Act,
which was the statute passed in the aftermath
of that 1876 disaster,
there are two ways that Congress can resolve a dispute
over multiple slates of electors.
Both chambers, the House and Senate,
can agree on the slate that gets counted,
and if they agree, that is the slate that gets counted.
But if the House and the Senate cannot agree,
then the slate of electors certified by the governor
gets counted by default.
- You can see how this might open the door to partisan games
after the 2020 election.
Right now, Democrats control the House
and Republicans control the Senate.
Neither side can even agree on a COVID stimulus.
There's certainly no guarantee they'll agree on electors.
That means if Congress remains divided,
then the election could come down
to what slate of electors governors decide
to certify in each state.
Imagine Florida votes blue,
but the Republican legislature claims
the election was flawed,
and the Republican governor certifies
a slate of Trump electors instead.
Or imagine Pennsylvania votes red
and their Democratic governor certifies a slate for Biden,
accusing Republicans of voter intimidation at the polls.
In the top 10 battleground states,
the GOP controls almost every state legislature.
Five states are run by Democratic governors,
and the other five,
which happen to have the largest share of electors,
are run by Republicans.
- [Lessig] Now this game would radically change
if the Democrats hold onto the House,
but take control of the Senate.
The new Democratic-controlled Congress
would start on January 3, three days before
the electoral votes are to be certified, giving the
Democrats a bicameral majority.
The majority they need
to resolve multiple slates of electors,
regardless of which slate the governor happens to sign.
- [Reporter] So what can we do about all of this?
The first step is to vote in record numbers.
A landslide victory can help buffer
against these partisan tactics
and so far over 70 million Americans
have already voted early,
shattering records for voter turnout nationwide.
- The other thing to do is to start raising awareness.
Let your state lawmakers, your governor,
and your representatives know
that you will be watching closely
for any sort of partisan games
in the counting of the Electoral College votes.
People in power often count on the fact that
the system is wildly confusing to most people
in order to game the system.
Sunlight is the best disinfectant.
Your paying attention is even better.
The more we start talking about the Electoral College now,
the better we can inoculate this nation
against efforts to subvert the popular vote
between the election and January 6.
- For more updates, keep it right here at MTV News.