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Can the Electoral College Stop Donald Trump?

by Countable | 11.14.16

In the last few days, concerned Hillary Clinton supporters have argued that they may not need to accept the results of the presidential election, that Donald Trump can still be prevented from taking the White House in January. How? Through the Electoral College.

Clinton won the popular vote and currently leads Trump by about 700,000 votes nationally, as states work to verify their results. So now, some 4.3 million supporters are circulating a petition to get members of the Electoral College to switch their votes and install Clinton as president.

But it isn’t as easy as it sounds. The Electoral College has never changed the outcome of a presidential election in U.S. history and while 2016 has clearly proven to be a change-year, there’s almost no chance that even a historic Electoral College coup would results in a Hillary Clinton presidency.

How does this work?

The Electoral College is a part of the Constitution; it was created by the Founding Fathers out of concern about what a popular vote by a largely uneducated U.S. electorate could mean. So they added in electors who, using the votes of those they represent as a guide, would ultimately elect the president. Here’s a quick video explaining how that works.

The Electoral College will meet to vote for the president and vice president on December 19. Now, anti-Trump voters are pushing a petition to get some of those representatives at the Electoral College to change their votes, becoming what’s called "faithless electors."

Is that legal?

Yes. There is no federal law requiring electors to vote with their states. The Supreme Court ruled in 1952 that while states could remove electors who refused to pledge their vote for whoever won their state or district (depending on state law), they could not do anything that would prevent an elector from actually voting as he or she saw fit. The Court wrote at the time that the Constitution (in both Article II and the Twelfth Amendment) provide for an "assumed constitutional freedom of the elector," and that “[t]he intention of the Founders was that those electors should exercise their judgment in voting for President and Vice-President.”

Twenty-one states do not have any laws requiring their electors to vote for the candidate chosen by those they represent. Twenty-nine states and D.C. do, however, each with a different form of punishment for those who vote faithlessly, though those are generally minor (usually a fine), rarely enforced and it’s not clear how they’d hold up before the Supreme Court. The National Archives has a full list here. In three of those states (Michigan, North Carolina and South Carolina), any vote by an elector against the winner of that state will be cancelled and the elector will be replaced, according to the National Archives.

Ok, so the people in those 21 states can just change their vote. Sounds simple.

Technically, yes. But that doesn’t mean they will. Remember all of that talk at the Republican National Convention of anti-Trump committee members pushing to change the rules to force him off the ballot? That didn’t go anywhere either.

Electors are partisans, often active in their respective state parties or other political organizations. The electors in states where Trump won the popular vote in most cases are die-hard Republicans who are unlikely to turn their back on their party’s nominee, much less vote for Clinton. In fact, in U.S. history, while some electors have voted for a third-party candidate, only one has ever switched from one major party to the other (an Oklahoma elector who did not want to vote for Richard Nixon in 1960).

Trump leads Clinton with 290 electoral votes to her 228 (Michigan and its 16 electoral votes is still outstanding, but leaning toward Trump). Even if Clinton somehow wins Michigan, she’d need 26 electors to vote against Trump and for her instead. Under a more realistic outlook (i.e. without Michigan) that number jumps up to 42. The only time that many electors have switched their votes was in 1872, when 63 electors voted for someone else after Ulysses S. Grant’s opponent, Horace Greely, died between Election Day and the day the Electoral College met.

They could throw it to the House

The next best-case scenario for those who oppose Trump would be to get enough electors to vote for an alternative candidate so that neither he nor Clinton has the 270 necessary to win the White House. That would leave it up to the House to choose the next president after new members are sworn-in next year.

The House would get to vote for one of the top three candidates that received votes in the Electoral College (none of the third party candidates for president did this year, so they and others would also rely on faithless electors). And who would that candidate be? Vice Presidential nominee Mike Pence (R-IN)? House Speaker Paul Ryan (R-WI)? It would be up to faithless electors to decide and try to lobby their colleagues to support that third option as well.

Once it gets to the House, each state would get a single vote, meaning large, purple states like Colorado, Florida or Michigan would have to battle it out among themselves to choose their candidate. In the new Congress, Republicans will make up the majority of 32 state delegations, while Democrats will hold 17 and the state of Maine is split, so the math certainly favors Republicans.

It’s unlikely that the Republican majority will want to squander time it could be spending preparing legislation for a new Republican president fighting over who that president should be. While several Republican members distanced themselves from Trump during the campaign, many of them later reversed course and voted for him.

(If, for some reason, there’s no consensus in the Electoral College about the VP either, that vote goes to the Senate, where each individual senator may cast their vote).

Should we get rid of the Electoral College?

It would take a constitutional amendment to get rid of or reform the Electoral College. A number of politicians have called for change at one time or another (including Trump in 2012 and Sen. Bernie Sanders (I-VT) and Michael Dukakis now). But there has never been a concerted effort to do so.

There are two ways to amend the Constitution, either through Congress or through state conventions.

Should Congress start the process of trying for reform or eliminate the Electoral College altogether? Tell your reps.

— Sarah Mimms

Correction: A previous version of this article misidentified the day that the Electoral College is meeting as Saturday. It is December 19, not November 19.

Countable

Written by Countable

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