The last-ditch push for the Electoral College to stop Trump, explained

Donald Trump won last month’s presidential election. But many liberals and progressives are still clinging to one faint, almost-certainly-doomed hope that he can be blocked from the presidency — through the Electoral College.

That’s because the November 8 vote was technically not to make Trump president, but only to determine who 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 Monday, December 19.

In modern times, the casting of electoral votes has been a purely ceremonial occasion in which the state results from Election Day have been rubber-stamped.

This year, there’s more drama — because there’s been a highly unusual effort to convince Trump-supporting electors to simply not vote for Trump.

To be clear: Considering who the electors pledged to Trump are, how many are pledged to him, what they’ve said publicly, and the existence of American norms that have been built up over hundreds of years, it is incredibly unlikely that there will be any Electoral College surprise.

Thirty-seven electors would need to defect from Trump’s camp to deprive him of the Electoral College majority he needs to become president. But only one of those 306 electors pledged to him has publicly said he’s revolting. A survey of electors by the Associated Press and a whip count by the RNC both failed to turn up any others who said they’d do so. If those counts are anywhere close to accurate, this effort won’t even come close to succeeding.

But weirdly enough, this scheme arguably seems to be technically possible, because the US Constitution does appear to give the electors the final say in picking the president. The problem is that, if they ever actually did so, they’d create an immense constitutional crisis.

The Electoral College is essentially an undemocratic system that’s been jury-rigged to make it somewhat more democratic. Originally, the idea was that these elite “electors” would make up their own minds on who should be president, rather than having the American people actually vote on the matter. And it was left to the states to decide just how these electors would be chosen.

Gradually, though, as democratic norms and the two-party system became entrenched, the states all came to adopt a system where there would be a statewide vote on the presidency. The electors themselves would be from a slate hand-picked in advance by the winning candidate’s party in each state, and expected to rubber-stamp the outcome of a vote in the state. And the vast majority of electors over the past two centuries have done just that.

But not all of them have. Richard Berg-Andersson lists nine electors who instead chose to go “rogue,” refusing to vote for their state’s choice for president. None of them swung a presidential outcome — but their votes were all counted as cast by Congress (which has the job of actually counting the electoral votes).

In recent years, most states have attempted to foreclose the possibility of elector defections. According to the National Conference of State Legislatures, 29 of the 50 states have passed laws “binding” their electors to vote in accordance with the presidential popular vote in their state.

Yet in most, the penalty for being a faithless elector is only a fine, and it’s unclear whether stiffer penalties would hold up in court — the matter has never been truly tested, and the Constitution’s language may indeed give the electors the right to make the final call. Furthermore, there are still 21 states that haven’t even tried to bind their electors. Basically, it’s a really messy system that’s long been vulnerable to something going wrong.

Essentially, some Democratic electors pledged to Clinton — including several Bernie Sanders fans — want to block Trump from becoming president, because they view him as unfit for the office.

To this end, they’re arguing that electors should now, for the first time in centuries, take on their original intended role of making up their own minds to choose the president.

In the days after the election, the idea was tossed around that perhaps Trump electors could be convinced to vote for Clinton, since she had, after all, won the popular vote.

But it quickly became clear that that was a nonstarter. The electors pledged to Trump are generally staunch Republicans or conservatives who strongly dislike Clinton and do not want her to become president.

So a new idea emerged: Perhaps some Trump electors could be convinced to ditch him and vote instead for a Republican politician who wasn’t even on the ballot — someone like John Kasich or Mitt Romney.

This is the pitch from a group of electors calling themselves Hamilton Electors, in reference to the wildly popular Broadway musical. (Just kidding, they’re referencing a Federalist Paper in which Alexander Hamilton says that the Electoral College should be an “intermediate body” that’s less exposed to the people’s “heats and ferments.”)

So the Hamilton Electors — all but one of whom, so far, are Democrats pledged to vote for Clinton — are saying that they’re willing to defect from Clinton and cast their votes instead for a Republican alternative to Trump, and they’re urging Republican electors to unite with them.

The idea has caught fire in liberal social media circles, and some celebrities have even gotten involved.

The Hamilton Electors and their sympathizers are arguing that Trump’s installment as president would mean an unprecedented threat to American democracy. They say he’s temperamentally unfit to be president, and suggest he could end up a potential tyrant, demagogue, or threat to world peace. They also express fears about Russian influence on Trump and his team, and are concerned that his business holdings pose the possibility of unprecedented corruption. Therefore, they argue, dramatic methods are necessary to block Trump from taking power.

They also make the case that even though elector intervention like this would be essentially unprecedented, it is in fact in line with what the Founding Fathers originally envisioned as the Electoral College’s role. “The founders envisioned electors as people who could prevent an irresponsible demagogue from taking office,” writes the Atlantic’s Peter Beinart.

But many critics of this line of thinking— on both the left and right — aren’t convinced. Mainly, they argue that an Electoral College revolt would be a tremendously dangerous violation of the democratic norms that have governed US presidential elections for centuries.

All sides agreed in advance that the winner of the presidential election would be whoever gets 270 electoral votes. So this seems to many like a transparent attempt for the losing side to change the universally understood rules of the game after they have lost (which, again, is terrible for democracy). While it’s true that Hillary Clinton won the popular vote, everyone understood in advance that the popular vote was meaningless, and structured their campaign strategies with that understanding.

If we’re being real, this is essentially an attempt to steal an election that Trump fairly won — something that liberals would obviously be infuriated about if it were done to Clinton.

Naturally, then, some make the case that an attempted Electoral College revolt would likely in practice backfire and risk causing the constitutional crisis imperiling US democracy that these electors are saying they want to prevent. More on that below.

Finally, others just argue that this is just a silly fantasy that is in no way, shape, or form going to happen, and that those opposed to Trump’s presidency should be spending their time on actually useful work preparing for the reality of it, rather than remaining in denial that it will come about at all.

A candidate needs a majority of electoral votes — 270 — to become president. Trump has 306 electors pledged to him. So 37 would need to defect from him to put him below that majority threshold.

In the extremely far-fetched possibility that enough Trump electors defected to Clinton to give her 270 or more electoral votes, she in would in theory simply win (though, as I’ll explain later, it would in practice not be anywhere near so simple).

Alternatively, a combination of 270 Trump and Clinton electors could theoretically defect to some other candidate who wasn’t on the ballot, like Mitt Romney, delivering him the victory.

However, if no presidential candidate ends up with a majority when the electoral votes are counted, the outcome would be thrown to the Republican-controlled House of Representatives to decide, with each state’s House delegation getting one vote.

Interestingly, the House would have to choose among the top three electoral vote getters. That means that if, say, 37 Trump electors voted instead for Mitt Romney, the House would then choose between Clinton, Trump, and Romney.

In the past, I’ve warned of the risk that rogue electors could conceivably 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. Furthermore, if there ever was a serious attempt to do this, in practice it would be play out far more messily than these elegant and entertaining scenarios suggest.

To start, this particular batch of electors is highly unlikely to defect from Trump because of who they are — generally, they’re Republican Party stalwarts or activists chosen during state party deliberations, as the excellent Politico feature “The People Who Pick the President” makes clear. 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. And while some Trump skeptics are electors, the vast majority of them have said they’d affirm the results in their states.

Second, this isn’t an election where a couple defectors would make a difference. Thirty-seven electors would have to desert Trump to deprive him of his majority. That’s a lot. And again, there is currently just one who’s said he’ll do this (paramedic Christopher Suprun of Texas).

Third, even if Trump did fall under 270 electoral votes, so long as nobody else got a majority, the election would be decided by the GOP-controlled House. And unless some truly shocking new piece of information emerges, they are certain to affirm the will of their party’s voters and vote for Trump. While the Hamilton Electors have professed optimism that the congressional GOP would rally around some Republican alternative to Trump who gets their rogue electoral votes, this seems to me to be a naive misreading of the party’s incentives and desires. At every turn this year, the party has rolled over for Trump — who did, after all, win the Republican primaries fair and square — and that’s not going to change now.

Fourth, the proposed Republican alternatives to Trump don’t even want to become president in this way. John Kasich, for instance, urged electors not to vote for him — which makes sense, because the presidency of somebody who wasn’t even on the ballot would immediately be deemed completely illegitimate.

Finally, if the electors take unprecedented actions viewed as subverting the outcome of the election, the other parts of the political system aren’t going to just roll over and accept it — they’ll similarly respond in unprecedented ways.

For instance, keep in mind that it is the GOP-controlled Congress that actually counts the electoral votes (well, technically outgoing Vice President Joe Biden will count them, but Congress can object and vote on disputes). So if there are large-scale elector defections from Trump, Congress may well simply refuse to recognize them, saying they’re carrying out the voters’ will. Elector defections would surely be challenged in court too. And what would Trump supporters do if they see him deprived of a presidency he fairly won through these dubious means?

In any case, all these dangers are overwhelmingly likely to remain theoretical ones. Trump appears to be well above the number of electoral votes he needs, and that will likely be the end of the story.

Source: Vox