For #NeverTrumpers, there is one more far-fetched and extremely improbable scenario that could deny Donald J. Trump the presidency: a raucous rebellion within the electoral college. Curious? Read on.
All of us have seen the headlines. Hillary Clinton has won the popular vote over Trump (Clinton leads by over 2.5 million votes at posting of this blog) however presidents in our country are elected to the prestigious office through the electoral college.
Article 2, Section 1, Clause 2 of the Constitution reads: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” Trump has won the electoral college 306 to 232.
On the subject of the electoral college, potentially crazy scenarios have been making their way around the internet. For example, there is a petition for the electors of the electoral college to select Clinton instead of Trump which is not going to happen in reality.
The furor does raise a question though. Could an appointed elector vote against the will of the people in their state? Could an elector go against the popular vote of their own state?
This is the subject of faithless electors. The website Fair Vote illuminates this for us: “‘Faithless Electors’ are members of the Electoral College who, for whatever reason, do not vote for their party’s designated candidate. Since the founding of the Electoral College, there have been 157 faithless electors. 71 of these votes were changed because the original candidate died before the day on which the Electoral College cast its votes. Three of the votes were not cast at all as three electors chose to abstain from casting their electoral vote for any candidate. The other 82 electoral votes were changed on the personal initiative of the elector.”
There are 21 states that do not require the members of the electoral college to vote for the winning candidate in their respective state. 29 states (plus the District of Columbia) have rules that bind an elector to the will of the popular vote. In the Supreme Court case from 1952 Ray V Blair, the court ruled that it was constitutional for states to bind their electors to the candidate declared the winner of the state popular vote. Now, what if an elector in one of the 29 states decided to break the rules and go against the will of the popular vote? In most states that have the requirement, perhaps a small fine (maybe $1,000 like Washington State) or a misdemeanor charge.
Strangely enough, the Washington Post back on March 17 of this year was already discussing this issue: “Remember, Americans don’t directly elect the president. The electoral college does: Slates of electors pledged to support presidential and vice presidential candidates are voted upon in each state every four years. Each state, and the District of Columbia, is apportioned at least three of the 538 electors, allocated by the total number of U.S. senators and House members each state has. In December, these electors will gather in their respective states and cast votes for president and vice president. And in January, Congress counts these votes, determines if a candidate has achieved a majority — at least 270 votes — and then certifies a winner. We take it for granted that the individual votes we cast will be the ones that select the slate of presidential electors in our state. But the Constitution makes no such guarantee. In fact, it says the states appoint electors ‘in such Manner as the Legislature thereof may direct.'”
Post-election, there have already been some waves in the electoral college. Art Sisneros has resigned his position as an elector in Texas because he refuses to vote for Trump. “I do not see how Donald Trump is biblically qualified to serve in the office of the Presidency. Of the hundreds of angry messages that I have received, not one has made a convincing case from scripture otherwise. If Trump is not qualified and my role, both morally and historically, as an elected official is to vote my conscience, then I can not and will not vote for Donald Trump for President. I believe voting for Trump would bring dishonor to God, ” wrote Sisneros in a blog post.
Meanwhile, a group of Democratic electors are attempting to stage (what they hope to be) a massive rebellion in order to undermine the electoral college system and, perhaps, create a Constitutional crisis. “Anti-Trump forces are preparing an unprecedented assault on the Electoral College, marked by a wave of lawsuits and an intensive lobbying effort aimed at persuading 37 Republican electors to vote for a candidate other than Donald Trump…Behind the overt anti-Trump push is a covert agenda: If the courts establish that individual electors can switch allegiances, supporting candidates other than those who win their states, it would inject so much uncertainty into the process that states may be willing to junk the Electoral College in favor of a popular-vote winner.”
The article continues: “Leaders of the effort, mainly Democrats, have plans to challenge laws in the 29 states that force electors to support their party’s candidate. Those laws have never been tested, leaving some constitutional experts to argue they’re in conflict with the founders’ intention to establish a body that can evaluate the fitness of candidates for office and vote accordingly.” The piece is here.
A lot of this is probably much ado about not much. People designated to be electors have the reputation of being fierce party loyalists and it seems unlikely that they would vote against the Republican primary winner as well as the overall electoral college winner (atleast presumptive) of the 2016 presidential election.
Even if a group of electors could persuade 37 other members (Trump has 306 votes and would need to beneath 270) of the college to dump Trump, this would swing the presidential election for determination to the House of Representatives. They may well install Trump anyway.
By any reasonable measure, the overwhelming odds are that Donald J. Trump will be inaugurated as the 45th President of the United States on January 20th, 2017.