How to legally manipulate the 2020 election—from someone who tried to do it last time

By John Notarianni (OPB)
Oct. 30, 2020 9:33 p.m. Updated: Oct. 30, 2020 11:23 p.m.

Bret Chiafalo was a “faithless elector” in 2016. He sees plenty of potential to manipulate the 2020 election after the votes are cast—and it’s all perfectly legal.

We’re days away from a Presidential election that’s become a breeding ground for distrust and uncertainty. The rapid increase in absentee voting and vote-by-mail has led to concern that everyone’s ballot will not be counted. President Trump has intentionally cast doubt on the election’s integrity, repeatedly speaking about voter fraud.


Related: OPB's one-stop-shop for Pacific Northwest election coverage.

There’s no credible report of widespread voter fraud anywhere in the country, but even once the votes are counted, there’s a lot that needs to happen before the next president is sworn into office. A lot of the uncertainty comes down to the electoral college — and the individual electors who will be doing our voting for us.

Bret Chiafalo, a Washington elector in the 2016 Presidential race

Bret Chiafalo, a Washington elector in the 2016 Presidential race

Bret Chiafalo

The electoral college isn’t just a math equation for calculating who won in which state. It’s a collection of individual people, with different sets of rules governing how they’re elected and carry out their duties in each state. And on rare occasions, they don’t vote the way you did.

In fact, it happened in the last presidential election, here in the Pacific Northwest.

The faithless elector

Bret Chiafalo was already deeply skeptical of the electoral college in 2016.

“One vote in Wyoming counts for 43 votes in California,” he recently told OPB “Weekend Edition” host John Notarianni, “so it’s not close to one person, one vote.”

When he was chosen to serve as an elector for Washington that year, he dug deep into researching the institution’s history, reading Supreme Court cases and the Federalist Papers. In Alexander Hamilton’s Federalist No. 68, he found something interesting — the electors historically had a lot more discretion than most people think.

“They are set up as a group to determine who is qualified, who has the right temperament,” Chiafalo said, “and if they see something they don’t like, they’re supposed to stop that person from becoming president.”

Trump electoral college.

President Donald Trump speaks to reporters before a campaign rally at Green Bay Austin Straubel International Airport, Friday, Oct. 30, 2020, in Green Bay, Wis. (AP Photo/Alex Brandon)

Alex Brandon / AP

He was deeply concerned about the impending Trump presidency so, with the Federalist Papers in hand, Chiafalo co-started a movement to convince Republican electors to abandon the candidate certified as their state’s winner and become “faithless electors” as a way to siphon electoral votes away from President Trump.

In essence, to change the outcome of the election. They called themselves the Hamilton Electors.

The group needed to find 37 Republican electors who were willing to change their vote. They came up far short — in the end, only two Republicans made the change — and a subsequent Supreme Court case affirmed that states have the right to make laws that require electors to pledge votes for the winning candidate.

But today, most states either still have no laws governing how electors vote, or have no provision to penalize or replace an elector who goes rogue in 2020.

“So, they’re toothless,” Chiafalo said.


The certification conundrum

Before electors do their work, each state needs to certify which candidate won; that determines who the slate of electors will be. Typically, this is a straightforward process, but with the amount of scrutiny and doubt being projected on this election, Chiafalo worried it could become much more contentious this year.

“If there is, for example, a Republican secretary of state and it’s a very very close race, they could discard a county’s votes … and certify the votes that allow Donald Trump to take a swing state instead of Joe Biden,” Chiafalo said.

The same scenario is possible in reverse: a Democratic secretary of state discarding a Republican-leaning county’s votes. While he expects there would be resistance to such a move, it would still conceivably be legal under federal law.

“Certainly I would expect a state attorney general or other groups to take steps to get a temporary restraining order to stop that from happening,” Chiafalo said. “But, no, there’s no direct law that stops them from making these decisions.”

The faithless this time

Even if the state certification of results go through as planned, we could see more electors making the same move Chiafalo attempted in 2016. He barely takes a breath before being asked if he thinks so-called “faithless electors” could be a factor in 2020:

“I think it’s absolutely a possibility,” he said.

But he’s not necessarily envisioning another rogue attempt to influence the election. He sees a near-future where electors who are simply trying to play their role in the political process come under intense personal pressure to change their vote — even under threat of violence.

“The pressure that we experienced in 2016 was extreme,” Chiafalo said. “Death threats, thousands of emails, hundreds of physical mail, phones rolling off the hook. It’s going to be 100 times more intense this year. I definitely see some situations where some electors may switch their votes, or may even abstain from voting at all.”

Each state nominates their electors through a different process. Some states, like New York, have a central committee to designate their electors: Bill Clinton was an elector in 2016; Hillary will be casting her vote in 2020.

But in other states, like Washington, electors are often just local party activists who were chosen by their state caucus.

Intense partisan fighting along with widespread skepticism of the veracity of states' vote counts could put electors in an impossibly high-pressure situation.

“For the people who aren’t high-up political entities, the amount of pressure they’re going to get to change their vote… (is) going to be like nothing they’ve experienced in their lives,” Chiafalo said.

“And if they’re in a swing state, it’s going to be even worse."

The future

Despite all his misgivings about our current electoral process, Chiafalo said he’d eagerly serve as an elector again; even if just to share his misgivings with America’s current process.

“As long as it’s in the Constitution, it’s the system we have,” he said. “I can’t just say I’m not going to participate. But I think more people need to understand the real-life implications of the electoral college. It’s not just people pulling a lever.”

Chiafalo said a better system would be a simple direct vote for the president of the United States — or his personal preference: a ranked-choice voting system nationwide.

“Maine is proving right now — right now — that ranked voting will work in a presidential election,” Chiafalo said. “I think the rest of the country should look at Maine and truly understand why it’s a better system that will allow us to truly vote for the best person without throwing away our vote.”