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Corynne Courpas, left, signs a certificate during the formal vote of Maryland's 10 electors for Democrat Joe Biden for president and Kamala Harris for vice president. (AP) Corynne Courpas, left, signs a certificate during the formal vote of Maryland's 10 electors for Democrat Joe Biden for president and Kamala Harris for vice president. (AP)

Corynne Courpas, left, signs a certificate during the formal vote of Maryland's 10 electors for Democrat Joe Biden for president and Kamala Harris for vice president. (AP)

Noah Y. Kim
By Noah Y. Kim December 16, 2020

No, key swing states did not cast electoral votes for both Trump and Biden

If Your Time is short

• Although unofficial shadow electors did meet to cast votes for Trump in these states, these votes have no legal standing and do not qualify as certified electoral votes. The certified electors in these states all cast their votes for Biden. 

• The conditional electoral votes cast by these uncertified electors would only come into play if courts attempted to throw out the officially-cast electoral votes, and courts across the nation have repeatedly affirmed the legitimacy of Biden’s win in these states. ​

As presidential electors across the U.S. formally affirmed Joe Biden’s win, some social media users hoped that Republican electors who cast symbolic votes for President Donald Trump in key swing states could secure a second Trump term. 

One of these posts makes a series of misleading claims to craft an intricate theory of how Trump could still win the election despite losing both the electoral and popular votes. 

"PA/GA/WI/MI/AZ/NV," reads a Dec. 15 Instagram post. "6 states will cast their votes for Trump AND for Biden. A state has sent dueling electors only once when 3 states sent dueling electors for Hyde and Tillman..." The post goes onto claim that this development will lead to a second Trump term. 

This post was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook.) 

Multiple legal experts and academics told us that the post is not based in fact. 

It’s "somewhere between fantasy and hogwash," said Larry Sabato, director of the University of Virginia’s Center for Politics.

What are shadow electors?

Before a presidential election, state political parties nominate their candidates for the office of presidential elector. 

Under Article II of the Constitution, each state legislature has complete discretion as to how it chooses its electors. Since the late 1800s, all electors have been appointed by popular vote. (Electors in Maine and Nebraska are chosen by popular vote at the congressional district rather than state level.) 

During presidential elections, a vote for a particular presidential candidate is actually a vote for the slate of electors nominated by that candidate’s political party. The electors that win the popular vote in each state become eligible to cast votes in the electoral college for their party’s candidate. 

This year, Biden won the election in the swing states of Pennsylvania, Georgia, Wisconsin, Michigan, Arizona and Nevada, and so his electors in those states became legally eligible to cast votes for him. 

On Dec. 14, these electors gathered in state capitols and signed six "certificates of ascertainment" along with state governors, cementing Biden’s win. 

However, in key swing states, would-be Trump electors — often referred to as "shadow electors" — gathered on the same day as the certified Biden electors and cast symbolic votes for Trump.

Election law experts told us that the votes of these shadow electors, however, have no legal significance because they were not certified by state governments. 

Since Biden won the popular vote in all states mentioned in the post, the only electors with legal standing to cast electoral votes are those approved by their state’s respective governors and certified pursuant to state law, said Rebecca Green, professor and co-director of the Election Law Program at William & Mary Law School. 

All of the legally-recognized, state-appointed electors in Pennsylvania, Georgia, Wisconsin, Michigan, Arizona and Nevada cast their votes for Biden. 

"In no case among the states in question were Republican slates approved by their state's respective governors and certified to be electors," said Robert Alexander, an electoral college expert and professor of political science at Ohio Northern University. "This means their votes should not be counted."

It’s inaccurate to say that these states sent "dueling slates" of electors to the House to be counted. In each state, only a single slate of electors has received legal backing. 

The Hawaii precedent

Some of the uncertified Trump electors have justified their actions by comparing themselves to Hawaiian electors during the 1960 election. In that case, Democratic electors in the state cast a conditional vote for John F. Kennedy even though the official electors had already voted for Nixon. During the vote-counting process, the House and Nixon himself recognized Kennedy as the state’s winner. 

However, legal experts told us that the events of the 1960 election have little relevance to the current situation. 

In Hawaii, a court-backed recount was already underway at the time both slates of electors cast their votes. Although Nixon had won the initial count by a 141-vote margin, the results of the recount seemed to be favoring Kennedy. 

When Kennedy did win the recount, Hawaii Gov. William Quinn withdrew the state’s backing from the Republican electoral votes and certified Kennedy as the winner. 

"The state first certified Nixon, then certified Kennedy, and Congress counted the Kennedy electors – while making clear it was not establishing a precedent in doing so," said Richard Pildes, a constitutional law professor at the New York University School of Law. 

By their own definition, the shadow electors would only come into play if courts attempted to throw out the officially-cast electoral votes. And courts across the country have repeatedly affirmed that Biden legitimately won the swing states in question. 

"The legal basis for the competing slates of electors here have been rejected by dozens of state and federal courts throughout the nation, repeatedly," said Michael Morley, assistant professor at Florida State University College of Law.

A misleading reference to 1876 election

The post says that the current situation is similar to the "Hyde and Tillman" election, an apparent misspelling of the Hayes-Tilden election of 1876. 

Legal experts and academics rejected the comparison to the 1876 election, where multiple states sent dueling slates of electors to the House, and a political bargain struck between the parties handed the presidency to Republican Rutherford B. Hayes. 

"The current statutory framework didn’t even exist at that time," said Morley. "Right off the bat, it’s different."

The Electoral Count Act of 1887, a federal law written in part due to the confusion during the 1876 election, established new guidelines for the counting of electoral votes that are still in place today. 

Our ruling

An Instagram post says that "6 states will cast their (electoral) votes for Trump AND for Biden," which will lead to a second Trump term. 

Although unofficial shadow electors did meet to cast votes for Trump in these states, these votes have no legal standing and do not qualify as certified electoral votes. 

The conditional electoral votes cast by these uncertified electors would only come into play if courts attempted to throw out the officially-cast electoral votes, and courts across the nation have repeatedly affirmed the legitimacy of Biden’s win in these states. 

This post is False. ​

Our Sources

An Instagram post, Dec. 15, 2020

Interview with Michael Morley, assistant professor at Florida State University College of Law, Dec. 15, 2020

Interview with John Fortier, director of governmental studies at the Bipartisan Policy Center, Dec. 16, 2020

Email interview with Richard Pildes, Professor of Constitutional Law at the New York University School of Law, Dec. 15, 2020

Email interview with Rebecca Green, Professor of the Practice of Law and Co-Director of the Election Law Program at William & Mary Law School, Dec. 15, 2020

Email interview with Larry Sabato, director of the University of Virginia’s Center for Politics, Dec. 15, 2020

Email interview with Robert Alexander, professor of political science at Ohio Northern University, Dec. 15, 2020

Washington Post, The Trailer: Two electoral college contests for two Americas, Dec. 15, 2020

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More by Noah Y. Kim

No, key swing states did not cast electoral votes for both Trump and Biden

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