It Would Take a Virtually Unimaginable Miracle to Stop Trump's Electoral College Victory

Election '16

People pinning their hopes on an Electoral College rebellion to stop Donald Trump from becoming president are betting that between 40 to 50 red-state Republicans will break ranks next Monday when the Electoral College meets to deny him the 270 votes needed to win.

If that happened—and several campaigns under way are urging that course—it would dramatically and chaotically shift the selection of the next president to Congress, where GOP controls both chambers and what happens there is anybody’s guess. As of now, Trump has 306 Electoral College votes and Hillary Clinton has 232.

The activists, lawyers, scholars and citizens pushing for Electoral College salvation face significant hurdles. Thirteen states where Trump won the popular vote—amounting to 110 Electoral College votes—have laws forbidding electors from voting their conscience by diverting from the popular vote results. That leaves the pool of would-be Trump defectors to 17 states spanning from the deep red South and Plains to the newly red Midwest.

Those calling for an Electoral College rebellion are also saying it has an obligation to select a more qualified president, though many critics disagree, saying that is anti-democratic. The Hamilton Electors, named after Alexander Hamilton, who wrote in the Federalist Papers that the Electoral College is the last check against unfit presidents, are urging electors to reject Trump. Larry Lessig, the Harvard Law professor and briefly a 2016 presidential candidate, has created Electors Trust, offering free legal advice. He is also pushing back against criticism that voting one’s conscience is unfairly changing the agreed-upon rules.

“One could have the view that, whatever it was meant to be, electors have become just cogs in a wheel,” he blogged in response to Rick Hasen, who runs the nation’s most prestigious election law blog and said electors have a duty to their state. Lessig countered, “But if the College has any of the character that it was meant to have, then for electors to exercise judgment is not to ‘ignore it in an election where everyone agreed it was the set of rules to use.’ To the contrary, it is to take those rules seriously.”

The Fine Print

When it comes to the Electoral College, there are federal and state laws, and they don’t add up to a uniform national picture. Under the Constitution's 12th Amendment, when the Electoral College meets Monday in state capitals, each party’s popular vote winner will present a slate of electors to cast the final votes for president and vice-president. Those votes will be sent to Washington, where the Senate president will tally them before a joint session of Congress. If the Electoral College fails to award 270 votes to a candidate, then the House chooses the president. If the House fails to pick the president by a majority vote, it goes to the Senate.

Then there’s the states' legal fine print. More than half the states bind their Electoral College members to the popular vote, according to legislative experts. In these states, there are a range of penalties, from fines to being immediately replaced during the proceedings for voting one’s conscience, which the political scientists call a “faithless” elector.

“There have been ‘faithless electors’ in nine of the last 17 presidential elections—1948, 1956, 1960, 1968, 1972, 1976, 1988, 2000, and 2004,” wrote Columbia University Law School’s Richard Briffault, who said Congress has only once debated whether a faithless vote should be accepted or rejected. “In 1968, Richard Nixon carried the state of North Carolina and its electoral votes. One Nixon elector, Dr. Lloyd Bailey, however, cast his electoral vote for George Wallace. When the North Carolina results were read before the Senate and House on January 6, 1969, six senators and 37 members of the House, led by Senator Muskie and Rep. O’Hara, respectively, with support from other members of both chambers, objected on the grounds that an elector is obligated to vote for the candidate on whose slate he ran, so that the vote was not regularly given.”

After debate, the Senate and House sided with Bailey, Briffault said, “upholding elector independence and as Congress’s recognition that it has a very limited role in counting the electoral votes, with no right to reject the ballot of a properly appointed elector.”

How that precedent would play out today is unknown. According to National Conference of State Legislatures, 27 states and the District of Columbia bind their Electoral College slates to the popular vote winner. That list includes 13 of the states that voted for Trump (Alabama, Alaska, Florida, Montana, Nebraska, North Carolina, Oklahoma, Ohio, South Carolina, Tennessee, Utah, Wisconsin and Wyoming). Together, their 110 Electoral College votes are 40 percent of what’s needed for Trump to be chosen president.

The Trump campaign knows this. It has filed motions in Colorado to join a suit where one Democratic elector is seeking to challenge that state’s binding law, because, as Trump’s pleading said, that could create a precedent affecting his election. The Republican National Committee has an aggressive “whip” operation to ensure Republican electors in all the states—especially those states without binding laws—stay loyal to Trump.   

Right now, Trump has 306 Electoral College votes—the total of states where he won the popular vote. Clinton has 232 votes. At first glance, that means 37 Republicans would have to break away to deny Trump the presidency. However, activists in contact with the Hamilton Electors group have said that while they have 10 GOP electors willing to break ranks, they also said that six Democratic electors don’t want to vote for Clinton. They also said there's little active organizing of Democratic electors, such as freeing them to vote for a Republican alternative. Lessig has said 20 GOP electors are considering voting their conscience.

That's not enough. Realistically, there need to be between 45 and 50 rebellious Republicans to stop Trump. The Hamilton Electors are trying to create private forums for would-be defectors, but it may be too late because GOP electors have been besieged by thousands of emails, news reports said.

Where would the rebellious electors come from? Presumably from states that have not banned them from voting their conscience. There are 17 states won by Trump in that category: Arizona, Arkansas, Idaho, Indiana, Iowa, Georgia, Kansas, Kentucky, Louisiana, Michigan, Missouri, Mississippi, North Dakota, Pennsylvania, South Dakota, Texas, West Virginia. This is red-state America, and it’s hard to believe many Republicans appointed as presidential electors will put the entire country before their party’s consolidation of political power. Even if Trump were swept aside, which is extremely unlikely, most of the Republicans running Congress are not moderates. Their cure might not be that much better than the disease, only more pro-establishment.

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