The Top Election Myths Spreading Online
by Gabby Deutch | Last updated 11/11/2020 at 4:20 p.m.
Leading up to the Nov. 3, 2020, U.S. presidential election, misinformation relating to voting and election security was widespread. Now, as votes are being counted, these falsehoods continue to metastasize and flourish online. In this report, we catalogue the top myths about voting and the election that have appeared in NewsGuard’s ratings of more than 6,000 news and information sites worldwide. We will update this list regularly with the new myths as they emerge.
- MYTH: Mail-in voting significantly increases incidences of voter fraud and in the 2020 presidential election, Democrats committed widespread voter fraud to “steal” the election for Joe Biden.
- COUNTER MYTH: Voter fraud does not exist.
- MYTH: Donald Trump won the presidential election on Election Day, and votes counted after Nov. 3 — including mail-in ballots and early votes — are illegitimate.
- MYTH: 132,000 ballots from Fulton County, Georgia, were flagged as ineligible due to “change of address” irregularities.
- MYTH: 450,000 ballots had only a vote for Biden and no other races, which is clearly an instance of Democrats manipulating ballots.
- MYTH: A supercomputer called “Hammer” and an accompanying software called “Scorecard” enabled Democrats to switch votes from Donald Trump to Joe Biden, altering the outcome of the presidential election.
- MYTH: President Trump put secret watermarks on “official” ballots to trick Democrats, by showing that ballots they cast were unofficial and illegitimate.
- MYTH: Living people are fraudulently voting on behalf of dead people.
- MYTH: Arizona election officials gave Republican voters Sharpies, which cannot be used to mark ballots, in order to invalidate their votes.
- MYTH: Ballot counting was suddenly shut down on Election Night in swing states so that officials could change votes to support Joe Biden.
- MYTH: Wisconsin had more votes cast in the 2020 presidential election than the state’s total number of registered voters.
- MYTH: Poll watching is always illegal and amounts to voter intimidation or voter suppression.
- COUNTER MYTH: Poll watching is legal in all forms, and a candidate can form an “army” of poll watchers to go to precincts and monitor voters, to ensure that they are following all rules.
- MYTH: The removal of U.S. Postal Service mailboxes in August 2020 is part of a plot by President Trump and his appointee Postmaster General Louis DeJoy to make it more difficult for people to vote by mail.
- MYTH: Democrats support “ballot harvesting,” the practice in which political operatives are paid to collect ballots from vulnerable people like the elderly and disabled, and change the person’s vote so that it supports the political operative’s party.
- MYTH: Democrats promise violence — in the form of a coup or civil war — unless Joe Biden wins the presidential election.
- MYTH: Illegal immigrants can legally register to vote in state and national elections in the state of California.
- MYTH: Republican-majority state legislatures plan to refuse to certify their state’s official election results in an attempt to ensure that neither candidate earns 270 votes in the electoral college.
MYTH: Mail-in voting significantly increases incidences of voter fraud, and in the 2020 presidential election, Democrats committed widespread voter fraud to “steal” the election for Joe Biden. The arrest of a single person on voter fraud charges, or even the suspicion that a person acted fraudulently, provides evidence that the problem is rampant. Surely, if one person is doing it, many more are also doing it — and getting away with it.
COUNTER MYTH: Voter fraud does not exist. People who warn that voter fraud is a reality are just trying to suppress voters.
While voter fraud does occur, evidence indicates that it is rare. The Heritage Foundation maintains a voter fraud database documenting cases dating as far back as 1986 and, as of Oct. 20, 2020, had found a total 1,298 cases of voter fraud, with 208 involving absentee ballots. Amber McReynolds, CEO for the National Vote At Home Institute and Coalition, and Massachusetts Institute of Technology political science professor Charles Stewart III cited this data in an April 2020 op-ed for The Hill stating that 143 of these absentee ballot cases resulted in criminal convictions. They wrote that “fraud using mailed ballots over the course of 20 years comes out to seven to eight cases per year, nationally,” adding that this rate represents “about 0.00006 percent of total votes cast.”
There is no evidence that there was massive fraud in the 2020 presidential election. A report published by the Organization of American States, an international organization that served as a nonpartisan election observer monitoring the U.S. election, did not find evidence of any irregularities or systematic fraud, The Wall Street Journal reported. The Associated Press reported that, contrary to claims by President Trump and other Republican officials, “Trump has not presented evidence that Americans had a dishonest election or that ‘illegal ballots’ shaped the result.” After contacting top election officials — a mix of Republicans and Democrats — in all 50 states, The New York Times reported that all said their states conducted secure, fair elections with no evidence of widespread voter fraud.
In states where the margin between Donald Trump and Joe Biden is small and recounts are expected, election officials indicated that the recount will almost certainly not change the result of the election. For example, Georgia Secretary of State Brad Raffensperger, a Republican, stated: “Was there illegal voting? I am sure there was. And my office is investigating all of it. Does it rise to the numbers or margin necessary to change the outcome to where President Trump is given Georgia’s electoral votes? That is unlikely.” In response to the Trump campaign’s demands for a recount in Wisconsin, the bipartisan Wisconsin Elections Commission “says it is not aware of any irregularities,” PBS reported.
As of Nov. 9, 2020, the Trump campaign had filed 12 lawsuits contesting election results and vote-counting procedures in Pennsylvania, Nevada, Michigan, Georgia, and Arizona, according to Time magazine. Eight of the lawsuits were dismissed or rejected for lack of evidence, or resolved by the parties; none are believed to have the potential to change the outcome of the election.
Moreover, when election officials identify instances of voting problems, they are demonstrating that the system is functioning as it should, by rooting out problems — and not counting those rejected ballots. For instance, in September 2020, Georgia secretary of state Brad Raffensperger announced an investigation of “potential double voting,” saying that 1,000 people may have voted twice in the state’s June primary election this year. However, he did not provide evidence that anyone was suspected of doing so intentionally or committing a crime, and the state has not prosecuted anyone for voting twice in June.
MYTH: Donald Trump won the presidential election on Election Day, and votes counted after Nov. 3 — including mail-in ballots and early votes — are illegitimate. The continued counting of votes after Nov. 3 has allowed Democrats to engage in widespread fraud to manipulate votes on Biden’s behalf.
It is not uncommon for election results to not be certified, or made official, on Election Day. According to Ballotpedia, “certification is the process by which the results of an election are made official,” a process conducted by state election officials. Each state sets a different certification deadline, ranging from Nov. 5 in Delaware to Dec. 8 in several states. Counting votes after Election Day is legally required, if those votes were cast lawfully and mail-in ballots were received by the deadline set by each state. Simply because a candidate is leading the vote count on the night of the election does not mean that he or she will ultimately be declared the winner.
There are multiple reasons that Democrat Joe Biden’s lead in several U.S. states became apparent only later in the vote count after the Nov. 3, 2020, election. Many states saw an increase in mail-in voting due to voters’ fears of the coronavirus pandemic, according to Ballotpedia, which tracked states’ temporary modifications to absentee voting procedures in response to the coronavirus. Some states that had offered only limited absentee voting expanded it, and states that have offered mail-in voting in the past have seen more people than ever take advantage of it. In Florida, for example, 4.7 million people voted by mail, compared to 2.7 million people in 2016.
Because of this increase in mail ballots, many voting administrators and state officials around the country cautioned throughout September and October that they expected the counting of ballots in 2020 to extend beyond Election Day. In early September, Josh Mendelsohn, a Democratic consultant and pollster, told Axios that he expected Election Day to end with a “red mirage,” where “the data is going to show on election night an incredible victory for Donald Trump.” But, Mendelsohn said, when all votes were counted — including mail ballots, which were predominantly cast by Democrats — voters would say that “it looked like Donald Trump was in the lead and he fundamentally was not when every ballot gets counted.” Some conservative politicians and activists interpreted Mendelsohn’s comments as indicative of fraud, but his prediction ended up correctly describing the election outcome.
In some states where vote-counting has extended several days past Nov. 3, the state legislatures did not pass legislation allowing election officials to begin sorting and handling mail-in ballots prior to Election Day. For instance, Pennsylvania expanded its vote-by-mail system in a 2019 bill, but the legislation barred election officials from counting those ballots until polls close on election night, ABC News reported. In October, the Republican-controlled legislature and the Democratic governor were unable to reach a deal to begin counting mail-in votes earlier, so the state was not able to count those votes until late on Nov. 3. In Pennsylvania, nearly three times more Democrats than Republicans voted by mail, so it makes sense that the mail-in vote totals overwhelmingly favored Biden. This, in turn, shifted the results in the state from Trump leading on election night, before mail-in votes were tallied, to Biden ultimately winning the state when all votes were counted. This is not evidence of fraud or manipulation.
MYTH: 132,000 ballots from Fulton County, Georgia, were flagged as ineligible due to “change of address” irregularities.
There is no basis for this claim. Jessica Corbitt, a spokesperson for the Fulton County, Georgia, Department of External Affairs, told the fact-checking outlet Lead Stories that “Fulton County is aware of allegations of 132,000 ballots being ‘flagged.’ These claims are simply false and baseless. Certain news organizations have circulated this information without contacting Fulton County for confirmation.” Lead Stories also reported that a county spokesperson stated, “From what we can tell, the entire claim is false.” It is unclear what “‘change of address’ irregularities” the sites making this claim are referring to. Regardless, Corbitt said the claim that 132,000 people’s ballots were “flagged” is false. In a Nov. 9, 2020, interview with CNN, Georgia Lt. Gov. Geoff Duncan, a Republican, said that “at this point, we’ve not seen any sort of credible examples” of voter fraud.
MYTH: 450,000 ballots had only a vote for Biden and no other races, which is clearly an instance of Democrats manipulating ballots.
In every presidential election, millions of Americans vote only in the presidential race and none of the others, a practice known as “undervoting,” according to an analysis by The Washington Post. In Georgia, for example, the analysis found that in 2016, “the presidential race included more than 200,000 more votes than the state’s Senate race — nearly 5 percent of all voters in the state.” In Florida in 2016, The Washington Post wrote, “the gap was 120,000 votes.”
The claim apparently originated with Sidney Powell, an attorney who is assisting the Trump campaign in its litigation related to alleged voter fraud. However, Powell has not provided evidence for her claim that 450,000 ballots in five swing states — Wisconsin, Georgia, Arizona, Michigan, and Pennsylvania — had been cast for Biden and no other candidates. Even if Powell is correct that 450,000 ballots only included votes for Biden, this would not be “statistically improbable” or evidence of wrongdoing.
Further, individual ballots are not publicly released. So while it is possible to determine that more people voted for president than voted for other positions on the ballot, it is not possible to know which candidate they supported. A 2018 report from Pew Research Center explained that certain voter information is made public in “voter files,” which are digital files that “give a nationwide picture of voter registration and election turnout.” Pew explained that this publicly available data indicates whether a person voted, but not for whom they voted: “While information on the voter file record indicates whether or not someone voted in a given election, it does not indicate whom they voted for. That stays with you in the voting booth.”
MYTH: A supercomputer called “Hammer” and an accompanying software called “Scorecard” enabled Democrats to switch votes from Donald Trump to Joe Biden, altering the outcome of the presidential election.
There is no evidence that the “Hammer” computer system or the “Scorecard” software exist, let alone that they were used to alter votes. The director of the U.S. Cybersecurity and Infrastructure Security Agency (CISA) Chris Krebs, a Trump appointee, called such claims “nonsense” in a Nov. 7, 2020, tweet. In October 2020, a website called The American Report published claims about the existence of “Hammer” and “Scorecard” and their planned use in the election,claiming that an ex-government contractor named Dennis Montgomery built the system, without specifying when. According to The Daily Beast, Montgomery is “a former intelligence contractor and self-proclaimed whistleblower” with “a long history of making outlandish claims.”
MYTH: President Trump put secret watermarks on “official” ballots to trick Democrats, by showing that ballots they cast were unofficial and illegitimate.
The federal government does not produce ballots or play a role in administering elections. According to fact-checking websites PolitiFact and FactCheck.org, that task is typically handled by printing companies contracted by state and local governments. This claim originated among supporters of the QAnon conspiracy theory, who referred to a post from “Q” in February 2018 that said “watch the water.” FactCheck.org wrote that “It’s unclear why QAnon followers are pointing to this two-year-old message as support for a claim about fictitious watermarks on ballots in the 2020 election.”
MYTH: Republican voters in Arizona were given Sharpies to mark their ballots in order to disenfranchise them, because ballots marked with Sharpie cannot be counted.
Although some polling places in Arizona did give voters Sharpies, the Maricopa County Board of Supervisors explained in a letter that Maricopa election officials had chosen to use Sharpies after a testing process that guaranteed that they worked well with paper ballots in the county. “Sharpies do not invalidate ballots. We did extensive testing on multiple different types of ink with our new vote tabulation equipment. Sharpies are recommended by the manufacturer because they provide the fastest-drying ink. The offset columns on ballots ensure that any bleed-through will not impact your vote. For this reason, sharpies were provided to in-person voters on Election Day,” the letter said.
Arizona’s Secretary of State Katie Hobbs, a Democrat, also confirmed that ballots marked with Sharpies would be counted, according to Fox 10, a Fox affiliate in Phoenix. A Nov. 5, 2020, letter from Arizona Attorney General Mark Brnovich, a Republican, said that after looking into the issue, the Attorney General’s Office “is satisfied that the mere use of Sharpie brand markers at voting centers in Maricopa County did not result in disenfranchisement.” There is no evidence that only voters of one party were told to use Sharpies, nor is there evidence of ballots marked with sharpies being invalidated.
MYTH: Ballot counting was suddenly shut down on Election Night in swing states including Michigan, North Carolina, Pennsylvania, Nevada, and Arizona, so that election officials could alter ballots to ensure that they went to former Vice President Joe Biden.
Approximately 90 minutes after polls closed in Arizona, Fox News called the state for former U.S. Vice President Joe Biden. There is no evidence that counting suspiciously stopped after polls closed in the state.
Although many swing states did not finish counting ballots on Election Night, with some pausing their counts, there is no evidence that ballot counting in any swing state was shut down, or that states paused their counting to spend time ensuring that ballots went to Biden.
Ballot counting stopped in North Carolina on Election Night “because there were no more votes to count at that time,” North Carolina State Board of Elections Executive Director Karen Brinson Bell said at a press conference on Nov. 4, 2020. As of Nov. 4, 2020, there were 116, 200 absentee ballots that had been requested, but had not yet been received by the North Carolina State Board of Elections, according to the board’s website. Absentee ballots that are received by Nov. 12 will still be counted, according to the Board of Elections.
Some counties in other swing states did pause their ballot counts on Election Night. For example, Fulton County, Georgia, suspended its absentee ballot count for four hours after a pipe burst where the count was taking place, according to multiple press reports. Allegheny County, Pennsylvania, suspended its mail-in voter count overnight on Nov. 3, 2020, to give workers time to rest, according to KDKA-TV, a CBS affiliate station in Pittsburgh.
MYTH: Wisconsin had more votes cast in the 2020 presidential election than the state’s total number of registered voters, which is evidence of fraud.
The claim that Wisconsin counted more votes in 2020 than the state had registered voters is based on an outdated statistic from the 2018 midterm elections, according to fact-checking website Snopes. According to the Wisconsin Election Commission, the state had 3.6 million active registered voters as of Nov. 1, 2020. As of 3:15 p.m. eastern time on Nov. 6, 3.2 million votes had been cast in the state.
Wisconsin also allows people to register to vote on Election Day, so by the time Election Day concluded, Wisconsin’s number of registered voters had likely increased from 3.6 million. Craig Gilbert, Washington bureau chief for the Milwaukee Journal Sentinel, said in a tweet that Wisconsin historically sees between 300,000 and 500,000 people register to vote on Election Day.
MYTH: Poll watching is always illegal and amounts to voter intimidation or voter suppression.
COUNTER MYTH: Poll watching is legal in all forms, and a candidate can form an “army” of poll watchers to go to precincts and monitor voters, to ensure that they are following all rules.
Poll watching is legal in most states as an official role, regulated by election officials. According to the National Conference of State Legislatures (NCSL), poll watchers — known in some states as “partisan citizen observers” — are affiliated with a political party, and they “seek to ensure that election administration does not disadvantage their campaigns.” They are on hand to represent one political party and provide an extra level of oversight to ensure that voting and vote-counting is done fairly. Nonpartisan observers are also common, and they observe the overall integrity of the election. “Nonpartisan observers work to protect the integrity of the electoral process and advance electoral quality and accountability regardless of the political outcome,” NCSL states.
Each state has its own regulations governing who can serve as a poll watcher. For example, in Alabama, a poll watcher must be a registered voter, and there can be only one per party per polling place. In Michigan, anyone who is not a candidate for office can serve as an election observer, with a limit of two per party per precinct. States place limits on poll watchers’ communication, barring them from interfering with a voter casting their ballot and instead requiring that they raise any issues to election officials. “They are not supposed to interfere in the electoral process apart from reporting issues to polling place authorities and party officials,” NCSL states. Voter intimidation is a crime under federal law, which bars any action that “intimidates, threatens, or coerces” a voter to vote for a particular candidate or to not vote at all. The Department of Justice views voter intimidation schemes as a type of voter fraud.
As the vote-counting process in some states continued past Nov. 3, citizens appeared at vote-counting centers in several swing states seeking to watch as poll workers counted ballots. When these unsanctioned poll watchers were turned away, rumors circulated that officials were not allowing Republican or Trump campaign-affiliated poll watchers to monitor the counting process.
Although vote centers did turn away some people who wanted to observe the counting process, these centers were not biased against any one party, since both parties already had official representatives present as certified poll watchers. For example, The Detroit News reported that at the TCF Center, the Detroit convention center where votes were being tabulated, dozens of self-proclaimed poll challengers from both parties arrived, hoping to be let in. However, both the Democratic and Republican Parties had already surpassed the legal maximum of 134 poll challengers per party.
MYTH: The removal of U.S. Postal Service mailboxes in August 2020 is part of a plot by President Trump and his appointee Postmaster General Louis DeJoy to make it more difficult for people to vote by mail.
In August 2020, photos of blue USPS mailboxes being removed went viral on social media. Democratic politicians criticized the removals as an effort by the Trump administration to suppress votes, by making it harder for people to submit mail-in ballots at a time when more people than ever might vote by mail due to fears of the coronavirus. In fact, the USPS routinely removes mailboxes when they are not needed in a certain area. Doing so is not a political tactic but a long-held USPS policy. Following the release of an August 2020 photo of a USPS mailbox in Oregon being removed, Post Office spokesperson Ernie Swanson told the Willamette Week, a Portland newspaper, that “The reason we’re doing it is because of declining mail volume.” In 2011, the Seattle Post-Intelligencer newspaper reported that the number of blue USPS mailboxes on U.S. streets had declined from 400,000 in 1985 to 160,000 in 2011, as Americans sent less physical mail and relied less on the blue public mailboxes.
At an August congressional hearing, DeJoy testified that 30,000 collection boxes have been removed over the past 10 years. He also announced that he would postpone cost-cutting changes the USPS had implemented over the summer, including reducing overtime and limiting trips, which Democrats said could hinder the return of mail-in ballots. “I recognize that it has become impossible to separate the necessary long-term reform efforts we will need to undertake from the broader political environment surrounding the election, and I do not want to pursue any immediate efforts that might be utilized to tarnish the Postal Service brand, particularly as it relates to our role in the democratic process,” DeJoy said.
MYTH: Living people are fraudulently voting on behalf of dead people.
In many states, election officials cross-check the list of voters with the Social Security Administration’s list of people who recently died in that jurisdiction. If a voter in one of those states died between casting their ballot and Election Day, their ballot will be rejected. In a handful of states, including Massachusetts, people who die after casting their ballot, but before Election Day, do have their vote counted. There is no evidence that living people have fraudulently voted in the name of dead people in significant numbers. In a 2014 investigation, The Washington Post identified 31 credible instances of voter impersonation from 2000 to 2014, out of more than one billion votes cast in that period.
After the election, reports emerged online about cases of votes being cast by people who had died decades ago, including a man named William Bradley, who died in 1984 and would be 118 years old if he were alive today — older than the oldest person currently alive. In response to this rumor, Michigan’s Secretary of State’s office issued a statement affirming that Michigan checks all ballots against death records, so any vote cast in the name of a dead person would be invalidated. Further, the statement said that a more likely situation in the case of Bradley’s vote is that the vote was cast by a different (and living) William Bradley, according to ClickOnDetroit.com, the website of Detroit’s NBC affiliate WDIV.
“On rare occasions, a ballot received for a living voter may be recorded in a way that makes it appear as if the voter is dead,” said the statement from the Secretary of State. “This can be because of voters with similar names, where the ballot is accidentally recorded as voted by John Smith Sr when it was actually voted by John Smith Jr; or because of inaccurately recorded birth dates in the qualified voter file; for example, someone born in 1990 accidentally recorded as born in 1890.”
MYTH: Democrats support “ballot harvesting,” the practice in which political operatives are paid to collect ballots from vulnerable people like the elderly and disabled, and change the person’s vote so that it supports the political operative’s party. Democrats want to pass legislation to legalize “ballot harvesting” and other “cheat by mail” provisions because they support voter fraud.
The Democrats’ coronavirus relief bill, known as the Heroes Act (which passed the U.S. House but stalled in the Senate), stipulates that someone other than a family member would be allowed to return a ballot for somebody who was unable to leave home to vote. However, the bill explicitly bars the kind of abuse known as ballot harvesting. The legislation states that ballots must already be “voted and sealed” by the time the designated person picks it up, and mandates that the person “does not receive any form of compensation” for delivering the ballot.
According to the National Council of State Legislatures, a nonpartisan organization that researches and analyzes issues of interest to state officials, ballot collection is legal in many states. Still, these states have a variety of laws relating to the practice of ballot collection. Some states, like Arizona, only allow a family member, caregiver, or person who lives with the voter to turn in the voter’s ballot. Other states, including Montana, allow non-family members to return people’s ballots, but place a limit on the number of ballots a person may return.
MYTH: Democrats promise violence — in the form of a coup or civil war — unless Joe Biden wins the presidential election. The blueprint for their post-election plan is a report from the Transition Integrity Project, a partisan Democratic group that laid the groundwork for Democrats to react with violence in any situation aside from Biden winning in a landslide.
There is no evidence suggesting that Democratic officials, politicians, or activists have plans to respond with violence if President Trump wins reelection, or that they will advance a coup to unseat President Trump. Biden has routinely said that he will accept the results of the election, even if he loses, in contrast to President Trump. The Transition Integrity Project is a bipartisan group of more than 100 academics, civil servants, political experts, and former government and military officials that met in June to simulate possible scenarios that could occur on and after Election Day. The report they published describing the results of their exercise found that chaos would be likely, writing, “We assess with a high degree of likelihood that November’s elections will be marked by a chaotic legal and political landscape.”
However, the group’s report clearly noted that its exercise was only a simulation, and the results were a prediction, not a foregone conclusion. “These risks can be mitigated; the worst outcomes of the exercises are far from a certainty. The purpose of this report is not to frighten, but to spur all stakeholders to action,” the report stated. The report referred to “escalating violence” as one of the “biggest threats” in the aftermath of the election, and urged officials to address it directly. The report clearly called for only peaceful protest: “Our legal rules and political norms don’t work unless people are prepared to defend them and to speak out when others violate them. It is incumbent upon elected officials, civil society leaders, and the press to challenge authoritarian actions in the courts, in the media, and in the streets through peaceful protest.”
MYTH: Illegal immigrants can legally register to vote in state and national elections in the state of California.
Non-citizens are not eligible to vote in statewide and national elections in California and anywhere in the U.S. “To register to vote in California, you must be: A United States citizen and a resident of California,” the California Secretary of State’s website states. In 2015, California enacted two laws that led some critics to claim that undocumented immigrants could legally vote in California. The first allowed undocumented immigrants in the state to get a driver’s license, while the second enabled voting registration when U.S. citizens obtained a driver’s license. Critics said that the measure did not have adequate protections to prevent the registration of undocumented immigrants. Stateline, a state policy-focused publication from the Pew Charitable Trusts, reported in October 2019 that at least one non-citizen was registered due to glitches in the process. However, even in cases where noncitizens were mistakenly registered to vote, it remains illegal for them to cast a ballot.
MYTH: Republican-majority state legislatures plan to refuse to certify their state’s official election results in an attempt to ensure that neither candidate earns 270 votes in the electoral college. Their goal would be to send the final election to the U.S. House of Representatives, where each state would have one vote — and since more states have Republican-majority delegations, the House would elect President Trump.
Although it is constitutionally possible that a contested or inconclusive election could be decided by Congress, there is no evidence to suggest that Republican legislatures plan to choose not to certify election results and send the election to Congress. The last time Congress decided the outcome of the presidential race was in 1825, when none of the four candidates in the 1824 election won sufficient votes in Electoral College. The Washington Post wrote in October that a “contingent election,” in which Congress must decide the outcome, is an “exceedingly rare scenario.”
The 12th Amendment of the Constitution sets the procedures for electing the U.S. president, asserting that whichever candidate wins more votes in the Electoral College is the winner. If no candidate wins the majority of electoral votes, the 12th Amendment delineates a process for Congress to decide the winner. “The House of Representatives shall choose immediately, by ballot, the President,” the amendment states. “But in choosing the President, the votes shall be taken by states, the representation from each state having one vote.” The Constitution also holds that state elections shall be conducted “in such manner as the Legislature thereof shall direct,” meaning state legislatures set rules for their state’s elections.
The Atlantic reported in September that some officials and advisors in the Republican Party have said President Trump has “contingency plans to bypass election results and appoint loyal electors,” which would “ask state legislators to set aside the popular vote.” This plan would allow the legislatures to bypass the popular vote by choosing electors who do not have to abide by the way the states’ citizens voted. However, even this situation — which has not been publicly embraced by any Republican state legislators — does not involve sending the election to Congress. It would still have the election be decided by the Electoral College.