This question seems fairly straightforward. I believe it must have been answered somewhere, or I'm missing something very trivial.

Texas state Attorney General Ken Paxton sued Georgia, Michigan, Pennsylvania and Wisconsin asking that they be blocked from participating in the Electoral College. Quoting Wikipedia, but all sources cite it in a similar way (highlight mine):

Filed by Texas Attorney General Ken Paxton on December 8, 2020, it alleges that Georgia, Michigan, Pennsylvania, and Wisconsin violated the US Constitution by changing their election procedures in the run-up to the election. The suit seeks to temporarily withhold the certified vote count from these four states prior to the United States Electoral College vote on December 14, 2020.

The election results are:
306 vs. 232 electoral votes, total 538, 50%=269, 270-to-win. Biden wins.

The lawsuit seeks for removing 62 presidential electors, namely: Georgia=16, Michigan=16, Pennsylvania=20, and Wisconsin=10, total=62 electoral votes, so the result they are supposedly seeking for would be:

244 vs. 232 electoral votes, total 476, 50%=238, 239-to-win. Biden (still) wins.

Question: What's the catch? How invalidating (only) 62 presidential electors is supposed to reverse the election? Or are they assuming a different math?

  • The answer is No. In retrospective, it's not even about math. I see a president, who would never give in and his name is not Biden. Commented Feb 9, 2022 at 18:15

2 Answers 2


You're also missing something deeper in the Texas suit. They request various temporary measures, but then say:

As permanent relief, Texas asks this Court to remand the allocation of electors to the legislatures of Defendant States pursuant to the statutory and constitutional backstop for this scenario: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” 3 U.S.C. § 2 (emphasis added); U.S. CONST. art. II, § 1, cl. 2.

Significantly, State legislatures retain the authority to appoint electors under the federal Electors Clause, even if state laws or constitutions provide otherwise. McPherson v. Blacker, 146 U.S. 1, 35 (1892); accord Bush I, 531 U.S. at 76-77; Bush II, 531 U.S at 104. For its part, Congress could move the December 14 date set for the electoral college’s vote, as it has done before when faced with contested elections. Ch. 37, 19 Stat. 227 (1877). Alternatively, the electoral college could vote on December 14 without Defendant States’ electors, with the presidential election going to the House of Representatives under the Twelfth Amendment if no candidate wins the required 270-vote majority.

So, they want the Republican-controlled legislatures in those 4 states to appoint the electors... presumably in favor of Trump. They also envisage that Congress could move the date when the College vote takes place, to allow these new electors to vote (for Trump).

And failing that, they expect Congress to go into a contingent election, which (barring any unrequested developments, like SCOTUS--of its own accord--also invalidating some House races as well, ) would also favor Trump because in a contingent election:

If no candidate for president receives an absolute majority of the electoral votes, pursuant to the 12th Amendment, the House of Representatives is required to go into session immediately to choose a president from among the three candidates who received the most electoral votes. Each state's delegation votes en bloc, with each having a single vote.

The most up-to-date maths on the latter I found in a Dec 9 article:

In the new Congress that will convene next January, Republicans will hold the majority in 27 state delegations, Democrats just 19. Three states (Michigan, Minnesota, and Pennsylvania) will have evenly divided delegations that would be unable to cast votes at all), and Iowa may join them when an undecided House race is finally resolved.


What's the catch? How invalidating (only) 62 presidential electors is supposed to reverse the election? Or are they assuming a different math?

The requirement stays 270-to-win.

As a result, Trump doesn't need more votes than Biden, he just needs Biden to drop below 270 votes. That's 37 less than the current projected total of 306 for Biden.

Your assumption goes wrong here:

244 vs. 232 electoral votes, total 476, 50%=238, 239-to-win.

That is not correct. It's still 270-to-win.

@RickSmith digged up this reference about the 1872 election - so credit goes to him:

The whole number of electors to vote [..], as reported by the tellers, is 366, of which the majority is 184. Of these votes, 349 have been counted for President, and 352 for Vice President of the United States.

Source: Congressional Globe, February 13, 1873, page 1306, top left

Out of those 366, a few electors were rejected, but the majority stayed at 184. The President and Vice President both received 286 votes, so the difference was immaterial.

On top of this, there is still the possibility that the states legislatures will appoint new electors, who will vote for Trump. But that's not strictly necessary.

In practice, nowadays electoral votes will always be submitted. Even if the State can't finish counting, both sets of electors will submit their votes to Congress, just in case counting is finished before Congress looks at the votes.

Imagine only one party submitting their votes, and Congress accepting those because there are no other votes received for that state. Neither party wants to risk that, so both will submit votes.

As a result, as the total number of electors has been fixed to 538, nowadays one will need 270 electoral votes for a majority.

  • 1
    I have no idea what happened to the link for the Congressional Globe, since I can no longer reach the page. The starting point is: memory.loc.gov/ammem/amlaw/lwcglink.html which I can still access. Then 42nd Congress, then 3rd Session, pp. 673-1632. then enter 1306 for the page.
    – Rick Smith
    Commented Dec 11, 2020 at 23:08
  • 6
    Why the downvotes? The basic premise of this answer is correct. Suppose the Supreme Court had invalidated the Electoral votes of those four states, making it 244 vs. 232. That would not mean Biden still wins because "it's still 270 to win." Failing to win a majority of the possible votes would have left the vote up to the House, with one vote per state. Alaska and Wyoming would have had just as much clout as would New York and California would have had. Commented Dec 12, 2020 at 4:24
  • 5
    I didn't down vote, but the absolute majority requirement seems to be a matter of some interpretation in a case like this. The 12th amendment's wording is "a majority of the whole number of Electors appointed". If hypothetically SCOTUS had decided electors from those 4 states could not be legally appointed (i.e. if they used this exact term) in the manner that they were, does that change anything? The 1872 election surely is precedential to a good measure, but it's not clear it would have established an iron-clad precedent if the electors were "cancelled" by means other than Congress'. Commented Dec 12, 2020 at 16:11
  • 7
    @DavidHammen I did downvote, for the reasons explained by Fizz. It is not correct to say that the requirement stays at 270; rather, there is controversy about it. There's another answer here that shows evidence of precedent on either side of the question (politics.stackexchange.com/q/42190/6927), and, in any event, congress is not bound by precedent unless it chooses to be, and its actions in counting the electoral votes are probably not subject to judicial review.
    – phoog
    Commented Dec 12, 2020 at 16:23
  • 2
    @Fizz The number of electors has been fixed since 1964 at 538. The apportionment of those electors to states and the District of Columbia is done once per decade, based on the census. The Constitution is fairly clear that the US legislature decides if a state does not meet its obligations regarding electors. The Constitution is also quite clear that the US legislature gets to decide what to do if no candidate receives a majority of the electoral votes. What's not clear, at least to me, is the meaning of the "Safe Harbor" date. Lawsuits have continued after that date. Commented Dec 12, 2020 at 18:28

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .