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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

Leave a comment
(69)
  • Vjmotion
    11/15/2016
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    This is what the electoral college was created for. To prevent catastrophe. Trump is not fit to be president.

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  • Michelle
    11/14/2016
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    If the Electoral College does not vote against Donald Trump, then we should get rid of it. It was created foe exactly this reason - to prevent people from electing a bigot. There is so much at stake, one of those things being the welfare of our entire planet. It is not "cheating" or illegal to do this, this is one of the major reasons why the Electoral College was created in the first place.

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  • Mart
    11/15/2016
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    Why is our system only great when you win?

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  • LeddyFM
    11/15/2016
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    I think the popular vote should decide who is president. The US uses a direct-democratic system for every election, except for the most important one- the presidential election. Yes, I'm a democrat, but my problem is NOT that the republican candidate won, it's that he is in no way qualified to run the free world. Had Marco Rubio won, had Mitt Romney been a candidate and won, I'd be disappointed, but I'd feel more confident in their ability to run this country because of their experience. Come on America, we need to do this the right way!

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  • John
    11/14/2016
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    That's cheating like Hillary did in her debates. I think they should leave it as is. Donald Trump is doing a lot so far and the stock market is up. Besides, he is turning down his salary and vacations that will be given to him. I don't think Hillary is fit as she is all the time not done anything but lie, cheat and is a very evil criminal.

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  • TheRooster618
    11/15/2016
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    Typical liberal bigotry and hypocrisy. They love a system when it works in their favor... But when they lose, suddenly we need to get rid of it. I say, let them keep throwing temper tantrums. I love watching all this left-wing tolerance... i.e. vandalism and assault.

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  • GrumpyMSgt
    11/14/2016
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    Really? Did this election just clearly demonstrate the brilliance of the electoral college? Rural America has spoken very loudly. They are tired of being "fly over country" to the elitist politicians. If you eliminate the electoral college politicians would spend all their time in New York, California, Florida and similar large states. Middle America would be forgotten. Politicians with large foundations would be able to buy votes and utilize illegal alien votes to their advantage. The latest estimates are that between two and three million non-citizens voted in this presidential election. Check the maps and see where all the "blue" votes occurred. If you value your vote and all it stands for, defend the electoral college!

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  • wsdraperv
    11/14/2016
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    The congress certifies the vote of the electoral college. They won't certify it if Trump isn't the President. You're barking up the wrong tree.

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  • Josh
    11/15/2016
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    The United States has always been seen as the beacon of democracy throughout the world, but our president is not democratically elected? This needs to change quick

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  • AMS
    11/15/2016
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    For those of you making comments about the left-wing cry babies...take a moment to look up the term 'gerrymandering' and that might clarify things a bit for you! People have a right to be pissed when Trump supporters are nowhere near the majority! For the record, I'm not a Clinton supporter and I believe Bernie would be president if it weren't for our unjust, broken so-called democratic system.

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  • Fred
    11/15/2016
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    This is...2016, right? More....most people do not live under a rock, right? With the understanding that we the people can be informed about who is running in any election, can we equally be assured that our individual vote, i.e. Popular Vote is trustworthy and reliable in choosing a candidate ? Sooooooo, get rid of the pseudo college--Electoral as called, and be like every other democratic political body--even in the most primitive environments, where they 'just count the VOTE OF THE PEOPLE'.

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  • Nick
    11/14/2016
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    I encourage anyone interested in advocating for dismemberment of the electoral college to check out fairvote.org

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  • Kevin
    11/15/2016
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    The "without the Electoral College only the big cities will be represented" line is a big myth. Guess what portion of America the 100 biggest cities represent? Less than 20%. Try to win an election with that! Whether the EC goes this year or in 20 years, it's gotta go. Don't forget: the founders liked slavery, too. Not every idea was as good as freedom of speech.

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  • Michael
    11/15/2016
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    Stupid people need to learn about their own country. The founders of the constitution didn't want a full democracy for a reason. In a country so diverse a direct democracy would be the most undemocratic of any system. Without the electoral college 85% of the nation would have absolutely no voice/or representation. Try thinking for yourself instead of being drones of groupthink.

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  • Austin
    11/14/2016
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    liberals loved the electoral college in 08 why change now? democrats lost and republicans won fair and square. just because you didnt get your way dosent mean you can change how the process of choosing a president is done. you lost move on with your lives.

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  • Anna
    11/14/2016
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    The whole system IS rigged! God I really don't want to agree with the hater-elect. We saw how Hillary got the delegates and super delegates before a single vote was cast. We saw how her, the DNC and Debbie WS stole votes and ballots were hidden during the primaries! Now we see Hillary won the actual vote but the electoral college voted against the people. Neither of the candidates should have been allowed to run with the kind of baggage they had on their backs. Hillary did not lose, the American people lost. We have the most hate filled person becoming our pres and the VP is even worse! Americans dropped the ball and will soon find out that PedoTUS and SluTUS will make their hate and ignorance the new normal. Makes me very sad

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  • Michael
    11/15/2016
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    I just want everyone to realize that advocating to ask electors to go against the people's choice in their state because you don't like who won the election is by definition FASCISM.

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  • Kevin
    11/14/2016
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    We do not live in a pure democracy. The founders of the United States designed it to be a democratic republic and a federation of individual states, both with good reason. A majority opinion is not necessarily a fair representation of the needs of the country. Population is highly concentrated in urban areas and along the coasts. Getting rid of the electoral college allows politicians to cater to the interests of those in highly populated areas while ignoring the needs of those in rural areas.

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  • Annu
    11/17/2016
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    The electoral college was created out of fear that citizens would not be knowledgeable or smart enough to make wise decisions about their politicians. With all of info outlets these days, I think we can do without the EC.

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  • Betsy
    11/14/2016
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    This petition is ridiculous. Research the electoral college before you make the knee jerk reaction of throwing it away.

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