Could a single faithless elector cost Joe Biden the presidency?

Recent elections have given Americans a refresher course on how our presidents are chosen. We have been reminded that the Electoral College, not the national popular vote, is decisive. We have learned that although nearly every state allocates its Electoral College votes to the electors representing the candidate receiving the most popular votes, the Constitution does not require them to do so. (Maine and Nebraska award some of their electoral college votes to the winners of each congressional district.) We have been surprised to learn that the Constitution does not specify the details of how the electors are to be certified and counted—and dismayed to discover that the law passed to do so more than a century ago was vague and outdated, which is why Congress came together across party lines in 2022 to rewrite it.

Now it is time to focus on the destabilizing possibility that some so-called “faithless” electors could disregard the will of the people and cast their votes for a candidate who did not win the most votes in their state. This has happened 90 times throughout our history, so far without changing the outcome of the presidential contest.¹ But because we live in an era of close elections with a handful of swing states, the chances are higher today that such electors—indeed, just one—could do so, with potentially disastrous consequences.

Let’s see how this could happen in 2024.

Unless there’s a political earthquake, Joe Biden will comfortably carry 19 states, the District of Columbia, and Nebraska’s 2nd congressional district, for a total of 226 electoral votes, while Donald Trump will prevail in 24 states plus Maine’s 2nd district, with 219 votes. The remaining 93 electoral votes are controlled by seven swing states—the famous “Blue wall” (Wisconsin, Michigan, and Pennsylvania), two southern states (North Carolina and Georgia), and two states in the southwest (Arizona and Nevada).

Although Biden now trails in all seven swing states, he is doing significantly better in the three Blue Wall states than in the others.² Indeed, it is not unlikely that he could gain enough ground by Election Day to carry Wisconsin, Michigan, and Pennsylvania, with 44 electoral votes, while losing the other four. This would give him 270 electoral votes, just enough to win, leaving Trump with 268—or so it would seem.

But then an elector from a state Biden carried decides that they can’t in good conscience vote for the president and on the appointed day instead casts their ballot for Robert F. Kennedy Jr, leaving Biden one vote short of the needed majority.

What happens then? It depends on which state this elector represents.

Article II, Section 1 of the Constitution gives each state the authority to appoint its electors as it chooses. The result has been a patchwork of laws dealing with faithless electors. In 15 states, a renegade elector’s vote is voided, and a replacement is named. But in 19 others, their votes would count, including 11 states Biden won in 2020. Some of these laws specify enforcement mechanisms; others don’t. And some states—including Pennsylvania—have no laws bearing on this question. Chaos would ensue if a Biden elector from the Keystone State jumped ship.³

The Supreme Court offers only limited guidance on such controversies. In 2020, the Court ruled that states may enforce laws to punish faithless electors—if they have such laws. But the U.S. Constitution does not require any state to enact one, and a federal statute to that effect probably would be held unconstitutional.

It’s easy to predict that the campaign facing a razor-thin Electoral College loss—in this scenario the Trump campaign—would do everything it could to pry loose at least one vote from the winner. The Trump forces surely would target all the states that allow the votes of faithless electors to be counted—and those whose laws are silent on the matter—and probably those whose laws are vague about how to enforce their prohibition on faithless electors as well. With such high stakes, any campaign would be tempted to resort to unseemly tactics against vulnerable electors. As bare-knuckled combat raged across the country, a political system that is already under severe pressure would suffer an additional blow to its legitimacy.

There’s no chance that many state legislatures will act on this matter before Election Day, so if I were an election lawyer or a senior political operative working for the Biden campaign, I’d prepare myself for this issue. If I were working for the Trump campaign, I’d do the same thing. And if I held a leadership position in a state legislature with no law or a vague law on this matter, I’d be urging my colleagues to act now or, if it’s too late for this cycle, in time for the 2028 presidential election.