Q: Can the Electoral College elect Hillary Clinton on Dec. 19?
A: Yes, it may be constitutionally possible; but no, it will not happen, according to election experts.
A Change.org petition, now signed by more than 4.3 million people, encourages members of the Electoral College to cast their votes for Hillary Clinton when the college meets on Dec. 19. The petition argues that Donald Trump is “unfit to serve” and that “Secretary Clinton WON THE POPULAR VOTE and should be President.”
“If they all vote the way their states voted, Donald Trump will win,” the petition states. “However, they can vote for Hillary Clinton if they choose. Even in states where that is not allowed, their vote would still be counted, they would simply pay a small fine – which we can be sure Clinton supporters will be glad to pay! We are calling on the Electors to ignore their states’ votes and cast their ballots for Secretary Clinton.”
A number of our readers reached out to us by phone and email and asked if it was true that members of the Electoral College are not bound to vote for the candidate who won a majority of votes in their state, and specifically whether the Electoral College could actually give the presidency to Clinton over Trump.
Let’s back up a bit and explain how the Electoral College works, and why — an issue we addressed in 2008 in an article that has gotten a lot of views recently.
As we explained then, when U.S. citizens go to the polls to “elect” a president, they are in fact voting for a particular slate of electors. The electors, selected based on which party’s candidate wins the most votes in a state, meet in their respective states 41 days after the popular election. There, they cast a ballot for president and a second for vice president. In every state but Maine and Nebraska, the candidate who wins the most votes (that is, a plurality) in the state is supposed to receive all of the state’s electoral votes.
Because candidates can win some states by wide margins and others by a slim one, it is possible for a candidate to win the Electoral College vote even if he or she loses the national popular vote. Indeed that has happened three times in U.S. history, most recently in 2000 when George W. Bush lost the popular vote by about 540,000 votes to Al Gore, but won the electoral vote, 271 to 266. (Also, in 1824, John Quincy Adams was elected president even though Andrew Jackson received more popular and electoral votes.)
And the popular vote winner may not be the same as the electoral winner again this year. Absentee votes are still being counted, but as of Nov. 15, Clinton was winning the popular vote tally by more than 775,000 votes, even as Trump was handily winning the Electoral College tally.
Why is there an Electoral College? As we wrote in our 2008 story, most of the nation’s founders were actually rather afraid of democracy, and wanted an extra layer beyond the direct election of the president. As Alexander Hamilton writes in “The Federalist Papers,” the Constitution is designed to ensure “that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” The point of the Electoral College is to preserve “the sense of the people,” while at the same time ensuring that a president is chosen “by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.”
In modern practice, the Electoral College is mostly a formality. It is true, as the National Archives and Records Administration notes, that there is “no Constitutional provision or Federal law that requires Electors to vote according to the results of the popular vote in their states.” But the U.S. Supreme Court ruled in 1952 that states could require electors to take a pledge to support the party’s presidential and vice presidential nominees from its national convention. And many do. Some even prescribe fines of $500 to $1,000 to so-called “faithless electors” for not voting for the party’s nominee, or allow them to be replaced by an alternate.
Whether those pledges or fines could be upheld by the Supreme Court is unclear. As the National Archives notes, “No Elector has ever been prosecuted for failing to vote as pledged.” In addition, more than 20 states do not have a state law or party or state pledge requiring electors to back the candidates with the most votes in their state.
“There is a lot of uncertainty because it is such a scarce occurrence,” Chris Hughes, a staff attorney at FairVote, a voting-rights advocacy group, told us.
According to FairVote, there have been 157 “faithless electors” in the history of the U.S. But even that figure is deceptively high. Of those, 71 votes were changed because the original candidate died before the Electoral College cast its votes. In all, the group states, “82 electoral votes were changed on the personal initiative of the elector.” None has affected the outcome of a presidential election.
The most recent example occurred in 2004 when an anonymous elector from Minnesota, pledged to vote for Democrat John Kerry, cast a presidential vote instead for Kerry’s running mate, John Edwards, some believe by mistake. In 2000, a Democratic elector from the District of Columbia declined to cast her vote “to protest the lack of congressional representation for Washington, DC,” FairVote notes.
“Presidential Electors are theoretically free to vote as their consciences dictate, something the founders anticipated Electors would indeed do under Hamilton’s Electoral College invention,” Laurence Tribe, a professor of constitutional law at Harvard Law School, told us via email.
Tribe said the constitutionality of imposing a fine on a “faithless elector” is “open to doubt, and it is even more doubtful that a court would compel any Elector to be ‘faithful’ to the State’s winner-take-all outcome. Nor is it likely that the Vice President, who presides over the process of opening the Electors’ ballots and counting the votes cast by the 538 Electors, would feel free to ‘correct’ a faithless Elector’s vote. So, in theory, if enough Electors pledged to Mr. Trump decline to make him President-elect and vote instead for Secretary Clinton, she would become the President-elect and would be the 45th President upon taking the Oath of Office on January 20, 2017.”
But Tribe said such a scenario is highly unlikely as a matter of practice, in part because it would likely be opposed by President Obama and Clinton herself.
“In the current situation, where both incumbent President Obama and the candidate who won a popular majority nationwide, Hillary Clinton, have made such a huge point of accepting Donald Trump as the President-elect, and where both Obama and Clinton have repeatedly insisted that such acceptance is vital to the peaceful transition our democracy requires, I frankly cannot imagine either of them supporting the proposed move to have the Electoral College elect the former Secretary of State on December 19,” Tribe said. “And, without their support, the move seems doomed to fail.”
Indeed, Obama said at a press conference on Nov. 14, “Look, the people have spoken. Donald Trump will be the next President, the 45th President of the United States.”
In her concession speech, Clinton said, “Donald Trump is going to be our president” and added that Americans “respect and cherish” the “rule of law.”
There is another huge practical hurdle to the scenario called for in the petition.The electors are chosen by the state parties. They are usually people heavily involved in the campaign of their party’s nominee or active in the state party.
“The electors are mostly people connected to the political party leadership in their states,” Richard Pildes, a professor of constitutional law at New York University School of Law, told us via email. “So if you try to picture how this might happen, it would have to be the party leadership in some group of states that is convinced to abandon Trump.”
Kermit Roosevelt, professor of law at the University of Pennsylvania Law School, put it succinctly. He said that while there is “no clear requirement in the Constitution that electors vote for the candidate they’re pledged to … it’s very unlikely that defections will happen now.”