This story originally appeared on WITF.
Two Democratic state lawmakers want to punish any Pennsylvania electoral college member who votes contrary to the popular vote in the presidential election.
Ten electoral college members from Colorado and Washington were found to have done that in 2016, voting for third-party candidates instead of the Democratic nominee they were supposed to that year, Hillary Clinton. People who do so are known as “faithless electors.”
“It’s a topic now that’s being discussed unlike in previous presidential elections, and I think…it’s now more of a concern than ever,” said State Rep. Kevin Boyle (D-Philadelphia County), who’s leading the effort against the practice.
The measure by Boyle and Rep. Malcom Kenyatta (D, Philadelphia County) would punish any faithless elector by invalidating their vote, removing them from the delegation, and fining them $1,000.
Section 918 of Pennsylvania’s election code specifically outlines a process for choosing electors, who physically cast the state’s electoral votes for the winner of the statewide popular vote. No later than 30 days after a candidate receives a presidential nomination, each of the political parties submit their choices to fill those roles to the commonwealth’s Secretary of State. The votes they ultimately cast are determined by the popular vote.
But some have interpreted Article II of the U.S. Constitution, which gives states the authority to outline their own selection processes, as having a loophole that could be exploited if there’s no clear winner by the time electors must cast their ballots in December.
The Atlantic reported in early September that Pennsylvania’s GOP-controlled state legislature could choose different electoral college reps if that were to happen. State Senate Majority Leader Jake Corman (R-Centre County) and others dispute that. But in another Atlantic piece, Corman suggested the possibility.
Staff writer Barton Gellman wrote: “If controversy persists as the safe-harbor date nears, he [Corman] allowed, the legislature will have no choice but to appoint electors.”
“We don’t want to go down that road, but we understand where the law takes us, and we’ll follow the law,” Corman told Gellman.
Rep. Boyle said he and co-sponsor Rep. Malcom Kenyatta (D-Philadelphia County) are worried that before all the votes are counted, the GOP-controlled legislature would appoint electors for Trump, even if Biden is leading during vote-counting.
“If we’re going to start choosing electors in the state House come November or December, I think we’ve crossed the Rubicon in this commonwealth, and it’s really a big threat to our democracy,” Boyle said.
The law isn’t entirely clear on whether a state legislature could install its own electors in a disputed presidential race.
Analysis from the National Task Force on Election Crises suggests that in order for Pennsylvania’s legislature to do what Boyle and Kenyatta fear could happen, the legislature would first have to change its elector selection process during or after the election. That’s not allowed, the Task Force’s experts argue, according to the timeline set out in the federal election code.
Corman has insisted a change to Pennsylvania’s elector selection process will not happen. In a tweet, Corman said the legislature will not be involved in the selection.
I have had ZERO contact with the Trump campaign or others about how PA chooses electors. The PA process as outlined in the Election Code DOES NOT involve the legislature. pic.twitter.com/DI2vsO7Z1E
— Senator Jake Corman (@JakeCorman) September 25, 2020
Any controversy in election results past what’s known as the Safe Harbor day, which is Dec. 8 this year, is supposed to be decided by Congress.
A majority of states have laws banning faithless electors.
Which way will Pa. vote?