Does Trump Have a 12th Amendment ‘Path to Victory’?

"Let's just wait for the 12th Amendment to take place! Trump wins!" a Trump supporter tweeted.

  • Published 20 November 2020

Claim

U.S. President Donald Trump has a clear path to victory through the 12th Amendment because there is evidence of massive and coordinated voter fraud in key swing states.

Rating

Origin

On Nov. 7, The Associated Press projected that Joe Biden would become the 46th president of the United States. Meanwhile, conspiracy theories have plagued social media both before and after Election Day, many purporting to describe widespread voter fraud. However, no evidence exists of any widespread voter irregularities.

In fact, the Cybersecurity and Infrastructure Security Agency (CISA) issued a Nov. 12 statement that reported the 2020 U.S. presidential election was “the most secure in American history.” The Associated Press reported:

It’s hard to put it any more bluntly: “There is no evidence that any voting system deleted or lost votes, changed votes or was in any way compromised.”

Rejecting President Donald Trump’s persistent claims and complaints, a broad coalition of top government and industry officials is declaring that the Nov. 3 voting and the following count unfolded smoothly with no more than the usual minor hiccups.

It was, they declare, resorting to Trump’s sort of dramatic language, “the most secure in American history.”

On Nov. 17, President Donald Trump fired Christopher Krebs, the director of CISA, the same organization that issued the statement quoted by the Associated Press. Krebs was a Trump appointee.

More than two weeks after Election Day, one of the more persistent rumors on social media claimed that the 12th Amendment would give Trump a “path to victory” because of “evidence of massive and coordinated voter fraud in key swing states.” The rumor also said that Republican-controlled state legislatures in states where Biden won would perhaps decline to certify results, or vote to allow Trump electors to replace Biden electors.

One Trump supporter tweeted: “Let’s just wait for the 12th Amendment to take place! Trump wins!” Another tweet that received thousands of retweets and likes read: “It’s actually kinda convenient that Democrats are so ignorant of the Constitution because they have no idea what the 12th Amendment is about to do to them.”

Graham Ledger, a former host of a prime-time show on One America News (OAN), a far-right cable news network, also tweeted that state legislatures run by Republican majorities needed to “stand up for ‘We the People,'” effectively asking politicians to do the opposite by overturning the will of the people based on debunked conspiracy theories:

The tweet claimed that Trump could win and be inaugurated for a second term on Jan. 20, 2021, because of the 12th Amendment and Article II, Section 1, both of which address the electoral-vote process. Ledger described Trump’s purported “path to victory” in the video linked in the tweet, with the “path to victory” portion running from 26:58-32:39.

In sum, Ledger claimed there was a “constitutional path to victory” in Article II, Section 1 and the 12th Amendment, “to not allow all the votes to be certified,” because there was “evidence of massive and coordinated voter fraud.” This was false. Graham pushed debunked conspiracy theories about purported “fraud” taking place in connection to Dominion Voting Software.

Ledger also said that states with Republican-led legislatures don’t have to certify the ballots cast by its citizens, and instead, states can simply ignore the fact that more American citizens voted for Biden in Georgia, Wisconsin, Michigan, and Pennsylvania. He said state legislatures should choose to not certify results, and wait for a vote in the House of Representatives. He linked all of this to the “voter fraud” for which there has been no evidence. He also referred to it as “malfeasance.”

The Post-Election Electoral Process

After the American people vote in a presidential election, each state certifies its results after all votes are counted. Following certification, the state’s electors cast votes for the state. In 2020, that date was set for Dec. 14. For example, if a majority of votes in a state were for Trump, and that state has 16 votes in the Electoral College, then 16 Republican electors would end up voting on behalf of the state for Trump and Mike Pence on Dec. 14. The same would go for a state where a majority of voters chose Biden on their ballots.

Electors are chosen for each party, meaning that half of all electors that were chosen don’t end up voting in December if their party doesn’t win in a particular state. For example, Trump won the state of Mississippi, meaning that Democratic electors chosen by Election Day would not vote in December.

The Brookings Institution noted that when electors vote in December, “the winning side in all but Maine and Nebraska gets all the state’s electoral votes regardless of the popular vote division.” The National Archives detailed that Maine and Nebraska “have proportional distribution of the electors,” and “the State winner receives two electors and the winner of each congressional district (who may be the same as the overall winner or a different candidate) receives one elector. This system permits Nebraska and Maine to award electors to more than one candidate.”

The 12th Amendment

The 12th Amendment describes the procedure for electors choosing a president and vice president, and what to do in the event of a tie in the Electoral College. A tie did not occur in the 2020 U.S. presidential election, nor is it expected to occur when electors meet to vote for their respective states in December.

It’s unclear why Graham Ledger and others have cited the 12th Amendment as the “path to victory” for Trump, seeing as it does not provide a path to victory.

“Faithless Electors”

In 2020, electors for each state and the District of Columbia will vote for president and vice president on Dec. 14, but according to Business Insider, some may certify results by Dec. 8.

When the electors cast votes by Dec. 14, a U.S. Supreme Court ruling from July 6 may receive mentions in newspapers and on blogs. The Associated Press reported that the court unanimously ruled that “states can require presidential electors to back their states’ popular vote winner in the Electoral College.”

The ruling, in cases in Washington state and Colorado just under four months before the 2020 election, leaves in place laws in 32 states and the District of Columbia that bind electors to vote for the popular-vote winner, as electors almost always do anyway.

So-called “faithless electors” have not been critical to the outcome of a presidential election, but that could change in a race decided by just a few electoral votes. It takes 270 electoral votes to win the presidency.

A state may instruct “electors that they have no ground for reversing the vote of millions of its citizens,” Justice Elena Kagan wrote in her majority opinion that walked through American political and constitutional history with an occasional nod to pop culture.

The Associated Press projected that President-elect Biden had 306 votes in the Electoral College to Trump’s 232. A difference of 74 votes is not “just a few electoral votes.”

Georgia, Wisconsin, Michigan, and Pennsylvania

Ledger’s tweet specifically mentioned Georgia, Wisconsin, Michigan, and Pennsylvania.

Georgia is not one of the 32 states with “faithless elector” laws, meaning that Georgia’s electors are not bound by law to vote for the candidate in the winning party. However, The Atlanta Journal-Constitution reported that its 16 electors “are avowed Biden supporters who have worked for years to flip Georgia, which last voted for a Democrat for president in 1992.” The Democratic electors were not expected to surprisingly vote for Trump on Dec. 14, especially after a state audit was conducted, which is similar to a recount. On Nov. 19, following the audit, the Associated Press called the race for Joe Biden.

Unlike Georgia, the two Big Ten Conference states of Wisconsin and Michigan are two of the 32 states that do, in fact, have “faithless elector” laws. This means that, following Biden’s wins in both states, their Democratic electors would be bound by law to vote for their party’s candidate on Dec. 14. Wisconsin has 10 electors, and the Milwaukee Journal Sentinel reported that electors were “unlikely go against the popular vote.” Michigan has 16 electors, and all are expected to vote for Biden. Additionally, for example, Michigan Senate Majority Leader Mike Shirkey, the state’s GOP leader, told the nonprofit publication Bridge Michigan that Biden won the election, and that the Michigan Legislature would not take action to give Trump electors over Biden.

Shirkey and the Republican speaker of the Michigan House, Lee Chatfield, were summoned to meet with Trump at the White House on Nov. 20. Chatfield previously tweeted on Nov. 6: “Let me be very clear: whoever gets the most votes will win Michigan! Period. End of story. Then we move on.” Shirkey also told Bridge Michigan that he recommended Trump should begin helping Biden’s transition team.

A debacle involving Republican canvassers’ refusal to certify results in Wayne County, Michigan, the state’s most populous county, was not expected to stop Biden’s victory in the state. A court order or the state board were named as ways of likely resolving the situation.

The state of Pennsylvania does not have a “faithless elector” law. Marie Albiges for Spotlight PA reported that Pennsylvania’s Democratic electors “are state and local elected officials, political party leaders, and others who traditionally have strong connections to the party.” Derek Muller, a law professor at the University of Iowa, told Spotlight PA that “they tend to be loyal, partisan, and faithful to the party, and ‘will reliably transfer the preferences of voters.'”

State Legislatures

Ledger’s tweet also mentioned that because of “evidence of massive and coordinated voter fraud,” Republican legislatures “need to stand up for We the People!” However, American citizens already cast their votes in the 2020 U.S. presidential election. There has been no evidence of “massive and coordinated voter fraud.” A state legislature’s vote to overturn the will of its citizens based on the absence of evidence was not expected to occur.

On Nov. 19, Reuters reported that Trump had lobbied Republican-controlled state legislatures where Joe Biden won to vote instead to give electoral votes to the president:

Asked at a news conference on Thursday if the campaign’s aim was to block state certifications so Republican lawmakers could pick electors, Giuliani laughed and said the goal was to get around what he called an “outrageous iron curtain of censorship.”

Election officials and experts believe the Trump campaign has little chance of success.

“The results in Michigan and Pennsylvania are not particularly close, and the Trump campaign has come forth with no facts or legal theory that would justify disenfranchising hundreds of thousands of voters or throwing out the election results,” said Rick Hasen, an expert on election law at the University of California, Irvine, School of Law.

“This is a dangerous though almost certainly ineffective attempt to thwart the will of the voters or to delegitimize a Biden presidency based upon false claims of a stolen election,” he said.

Voting in the U.S. House of Representatives

Ledger’s video mentioned that he wanted states to not certify results, so that down the line the U.S. House would have to take up the matter.

It’s not expected to come before the House in this manner, but hypothetically, if it did, each state would have one vote, and each vote would depend on whether the state had a majority of Democratic or Republican members. Donald Brand, a professor at College of the Holy Cross, described the situation in The Conversation:

If neither candidate gets to 270 electors due to disputed ballots, the House would have to decide the election.

Though the House has a Democratic majority, such an outcome would almost certainly benefit Trump. Here’s why: In a concession to small states concerned their voices would be marginalized if the House was called upon to choose the president, the founders gave only one vote to each state. House delegations from each state meet to decide how to cast their single vote.

That voting procedure gives equal representation to California – population 40 million – and Wyoming, population 600,000.

No “Path to Victory”

In following the U.S. Constitution, there is no longer a realistic “path to victory” for Trump in the 2020 U.S. presidential election. Ledger, Trump attorney Sidney Powell, and others claimed there was evidence of massive and coordinated voter fraud or irregularities in key swing states. However, there has been no evidence presented, and on top of that, CISA said the 2020 election was “the most secure in American history.”

It appeared that, with Trump’s defeat, his supporters and those who represent him were attempting to find a way for state governments to overturn the will of the people so that he could serve two consecutive terms. For this to happen, several states would need to work in concert to disregard millions of ballots cast by American citizens, instead finding a way for Trump to continue for four more years in the White House, even after losing the popular vote by nearly 6 million votes.