Can 'faithless electors' swing outcome of US election in Trump's favour?

Presidential electors are to meet across the United States to formally choose Joe Biden as the nation's next president on Monday, the day set by law for the meeting of the Electoral College.

US President Donald Trump and President-elect Joe Biden; the Electoral College is set to confirm Biden's election victory, though Trump has yet to concede Morry GASH, JIM WATSON AFP/File

Electors meet in all 50 states and the District of Columbia to cast their ballots. The results will be sent to Washington and tallied in a 6 January joint session of Congress over which Vice President Mike Pence will preside.

In more regular election years, the electors' voting process doesn’t make many headlines. But this year, because of the incumbent Donald Trump’s ceaseless efforts to undermine the election results and his refusal to formally concede, all eyes are on the electors.

In theory there's a chance that it could happen again

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PODCAST: US Constitution specialist Edward Foley, Ohio State University on US electoral college and the question of "faithless electors"

Biden will address the nation on Monday night after the votes have been cast. But Trump is clinging to his claims that he won the election, undermining Biden’s presidency even before it begins.

“No, I worry about the country having an illegitimate president...a president that lost and lost badly,” Trump said in a Fox News interview recorded on Saturday.

Following weeks of Republican legal challenges that were easily dismissed by judges, Trump and Republican allies tried to persuade the Supreme Court last week to set aside 62 electoral votes for Biden in four states, which might have thrown the outcome into doubt.

'Faithless electors'

Trump’s last hope may be that there will be “faithless electors”, who don’t vote according to their mandate. This happened during elections in 2016, as a result of which Democratic candidate Hillary Clinton lost seven of her votes, and Trump two.

But this is not likely to happen this year. “The Supreme Court this year issued an opinion saying states have the right to stop faithless electors,” Professor Edward Foley, a US constitution specialist with Ohio State University, told RFI, while pointing out: “Not all states have taken advantage of this ruling...in theory there is a chance it could happen again.”

But even if some electors change their minds in favour of Trump, Biden’s lead of 306 over the outgoing president's meagre 232 won’t make much difference, according to Foley.

Joe Biden won 306 electors against Trump 232. At least 38 electors should change their mind if Trump were to win, but stricter rules were designed to discorage them from voting for the other side. © AFP

If, for some reason Trump still manages to stall the election process and there’s no positive Congress vote on 6 January, he will have to leave office anyway. “He is going to leave office no matter what,” says Foley.

The 20^th Amendment of the US Constitution stipulates that in the unlikely case that Biden is not voted in or Trump is not re-appointed, the Speaker of the House, Democrat Nancy Pelosi, takes over as acting president until a decision is taken. “But ultimately, it's Congress's decision on 6 January. And I think it's clear that Congress is going to say that Biden won,” says Foley.