Bent but Not Broken: The Constitutional, Legal, and Procedural Issues in the 2020 Electoral College Vote Certification

Abstract

After the raw votes in the 2016 U.S. presidential election were tallied and showed Donald Trump to be the Electoral College victor, Democrats protested in Trump-won states, asking Electoral College members to vote with their conscience and against their state’s popular vote. On January 6, 2021, supporters of President Trump stormed the U.S. Capitol demanding that the certification of the Electoral College vote in favor of Joe Biden not move forward. Are the laws, court decisions, and the Constitution itself set up to cause such an uproar around a routine item? Was the 2021 iteration of counting the Electoral College votes an aberration, or is this the new normal? This article examines the constitutional, legal, and procedural issues around the Electoral College certification vote. The author investigates the constitutional beginnings of the system for electing the U.S. president and discusses “faithless electors” and the power that 538 individuals have in the presidential selection process every 4 years. The author concludes with a discussion of the 2021 Electoral College vote certification and the mob that attempted to stop it.