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Friday, November 11, 2016
No, the Electoral College won’t make Clinton president instead of Trump | by Andrew Prokop
No, the Electoral College won’t make Clinton president instead of Trump
Donald Trump won Tuesday’s presidential election. But many liberals and progressives have begun clinging to one faint hope that he could still be stopped — through the Electoral College.
Tuesday’s vote was technically not to make Trump president, but only to determine who the 538 electors in various states across the country will be. It is those electors who will cast the votes that legally elect the president on December 19.
In modern times, the casting of electoral votes has been a purely ceremonial occasion where the results in the states have been rubber-stamped. But one idea spreading on left-leaning social media circles is that electors from states Trump won should be urged to support Clinton instead. A Change.org petition to this effect has more than 500,000 signatures.
Weirdly enough, this actually seems to be technically possible — the US Constitution does seem to give the electors the final say in picking the president.
But realistically, considering how big a lead Trump has, who the electors are, how their votes are counted, and hundreds of years of American democratic norms, it’s a silly fantasy that is just in no way, shape, or form going to happen.
How the Electoral College works
When Donald Trump and Hillary Clinton won states on Tuesday, the practical result was that they won slots for electors in those states. For instance, Trump’s win in Alaska meant the Republican Party’s nominated elector slate there — former Gov. Sean Parnell, Jacqueline Tupou, and Carolyn Leman — officially becomes Alaska’s three electors. This process repeated itself across the country, resulting in the selection of the 538 electors.
On December 19, the electors will cast their votes for president in their respective states. But while in the modern era this ceremonial occasion has been a formality that reiterates the results of statewide votes, it seems to be at least technically possible that electors could instead defy their states and vote for whomever they choose.
According to the National Conference of State Legislatures, about 30 of the 50 states have passed laws "binding" their electors to vote in accordance with the presidential popular vote in their state. But in most, the penalty for not doing so is only a fine, and it’s unclear whether stiffer penalties would hold up in court — it’s never been tested, and the Constitution does appear to give the electors the right to make the final call. Furthermore, there are still 20 or so states that haven’t even tried to bind their electors.
This isn’t just theoretical. Richard Berg-Andersson lists nine electors who have indeed gone “rogue” and refused to support their state’s presidential choice in the past 100 years. Their votes were all counted as cast, though there have never been sufficient numbers of them to overturn a presidential election result.
Why the Electoral College is not going to elect Hillary Clinton over Donald Trump
In the past, I have warned of the risk that rogue electors could throw the outcome of a presidential election to a losing candidate. But there are many reasons why it’s not going to happen this year.
1) The Trump state electors are Republican Party stalwarts or activists chosen during state party deliberations — check out this excellent Politico feature “The People Who Pick the President” to see who some of them are. Almost always, the parties do a good enough job of vetting their respective electoral slates to ensure that they will indeed loyally back their party’s presidential nominee.
The Republican Party clearly ended up falling behind Trump, and any Republican elector who abandons him would be defying the will of not only their state’s voters but also the party generally. And while there actually are some Trump skeptics who are electors, they’ve pretty much all said they’d affirm the results in their states.
2) Trump now looks likely to end up with 306 electors to Clinton’s 232. So it’s not as if one or two electors could make the difference. Thirty-seven electors would have to desert Trump to deprive him of his majority. That’s a lot.
3) These electors wouldn’t just have to desert Trump. Simply depriving Trump of 270 votes without giving Clinton herself 270 would throw the election to the GOP-controlled House of Representatives, which is certain to award the presidency to Trump. To prevent Trump’s election, they’d all have to affirmatively back Clinton.
Keep in mind that hardly any of even Trump’s strongest critics in the GOP went so far as to actually endorse Hillary Clinton over him. Mitt Romney, Jeb Bush, John Kasich, Lindsey Graham, John McCain, and George W. Bush all refused to go so far, saying instead they’d vote for no one or write in somebody else.
4) Any large-scale defections from Trump would surely be disputed by his supporters in those states, who may well just send in a conflicting set of electoral votes. And an 1887 lawholds that if states send in multiple conflicting sets of electoral college votes, Congress gets to vote on which ones to recognize. The Republican-controlled Congress would obviously not go along with an attempt by electors to steal the presidency for Hillary Clinton.
5) Hillary Clinton has conceded the election and recognized Donald Trump as the winner. There is no sign that she would go along with or participate in this endeavor.
6) Most importantly, there are democratic norms. The broader reason we’ve only had nine faithless electors in the past 80 years or so, despite the enormous power they seem to have, is that it’s widely believed that picking the president isn’t their job anymore. Their job is to affirm the results in their states.
In summary, what people are talking about is getting 37 Republican Party activists expected to vote for Trump to essentially steal the election for Hillary Clinton in defiance of the will of the people in their states and the widely recognized rules of the presidential contest, even though Clinton herself doesn’t want them to. Not going to happen.
If this actually happened, it would almost surely end in disaster
Many progressives and liberals are clearly unhappy with the outcome of this election and fearful of a Trump presidency, and understandably so.
However, in addition to being unrealistic, this idea that the electors should simply choose to make Hillary Clinton president would be tremendously dangerous for American democracy if it ever gained real steam, despite the fig leaf that it seems to be technically possible and that Hillary Clinton appears to have won the popular vote.
For 180 years or so, our system has interpreted the results of the state elections as the Electoral College results. The campaigns are waged based on this understanding of the rules. The electors themselves have been rubber stamps. The popular vote has been irrelevant. Degrading those norms as part of a likely doomed effort to defeat Donald Trump is a bad idea. (For one, future rogue electors may not always vote the way you want — several historical rogue electors had racist motivations.)
Furthermore, electors overturning Trump particularly would certainly cause a constitutional crisis, because there is no world in which the Republican Party — who, again, control Congress — would accept Clinton taking the presidency in this way. (Likely, as mentioned above, they’d refuse to recognize the returns.) And furthermore, when this sort of thing happens elsewhere in the world, it often creates a military crisis. (Hillary Clinton is not very popular among the military, so I’m not sure liberals want to make that play.)
Indeed, to be perfectly clear, this idea is essentially a call for destroying American democracy, at least so far as it relates to presidential election results, before Trump can even get the chance to do anything, without any clear idea of what would replace it. It is very, very unlikely to work out well.
Watch: It’s up to America’s institutions to check Trump