Failsafe

Confessions of an Elector: Only 270 Voters Really Get To Decide Who Our Next President Will Be

It’s the vote in December, not the one in November, that truly counts. And there’s a just a few electors voting their conscience who could save America from itself.

10.17.16 5:00 AM ET

With Donald Trump facing multiple allegations of sexual misconduct and openly battling the leaders of his own political party, the most surreal and disturbing week in modern American politics may have drawn to a close. But more disturbing still is that we are likely to see in the post-trauma polling that an astonishing percentage of the electorate still supports Donald Trump for president. In an election with third-party candidates taking over 10 percent of the vote and the Clinton campaign vulnerable to hacked emails, anything can happen—including a Trump victory with 45 percent of the popular vote.

There’s still a real chance that Donald Trump could win the November election. But that doesn’t mean he will be our next president.

Keeping Trump out of the White House would still be constitutionally possible. And it’s something our Founders would have wanted.

Thanks to them, there would still be one last vote he must win.

The November contest is not a direct election of the next president. Rather, it’s the election of a slate of electors in each state, equal to that state’s combined number of representatives and senators, who presumably will support the candidate who wins the popular vote in that state. These electors, plus three from the District of Columbia, comprise the 538 members of the Electoral College who cast ballots in December. The candidate who wins 270 or more or their votes will be the next president.

The Electoral College was devised by the Founders for the purpose of avoiding a popular vote and preventing what they feared could be “mob rule.” It was a check on the whims of an unruly electorate or, as de Tocqueville put it, “tyranny of the majority,” and, much like the Senate, a guard against the larger states rolling over the smaller ones in selecting a president. Alexander Hamilton, for one, sought 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.”

This unique constitutional provision has rarely been a matter of practical consequence. Only four times in 57 elections has the candidate who received the most votes in the November contest not been chosen by the state electors as president. Before the aberration of 2000, the last time a candidate won the popular vote but lost the Electoral College was Grover Cleveland in 1888.

For example, when Barack Obama won the popular vote in Illinois in 2012, all of that state’s 20 electors cast their votes for him. Similarly, when Mitt Romney won Georgia that year, all of Georgia’s 16 electors voted for Romney. Ultimately President Obama was re-elected with an Electoral College majority of 332 votes.

One of those votes was mine. I was a Democratic elector for the Commonwealth of Pennsylvania, which Obama won by more than 5 percentage points. I had pledged to support Obama and I (and all of my fellow Pennsylvania electors) did.

Electors are selected in different ways by different states, but typically Repbulicans and Democrats each pick a slate of trusted party loyalists and one slate or the other becomes the state electoral college, depending on the election results. The electors are expected to vote the party line in December, but they don’t swear any oath to do so.

Indeed, though some states penalize electors who don’t vote the way they are expected to and some states invalidate a “faithless” vote, 21 states have no penalty at all. Moreover, there is nothing in the Constitution or federal law to stop any elector from voting in December for whomever she chooses, regardless of the outcome of the popular vote in that elector’s state in November.

The Clinton campaign has lined up pledged electors in every state and the District. These individuals have been vetted and will become the slate of electors in those states that she wins on Nov. 8. Never say never, but it is unlikely that any Clinton elector would flip her vote in December to a different candidate, let alone to Trump.

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However, if Trump wins the popular vote on Nov. 8, then the December electoral vote may not be so automatic. The Trump campaign was often fighting the GOP establishment in the primaries and the slated electors in various states likely include Republican leaders who did not support Trump to begin with. For example, in Texas, a state Trump should win, a GOP senator and much of the establishment publicly opposed Trump in the primary (although Sen. Cruz recently and bizarrely endorsed him). The slate of Republican electors presumably includes party loyalists who fought and defeated Trump in April. No law binds them to the popular vote winner in November.

Might one or more of these dissident electors consider discarding the will of the people in his or her state to cast an electoral vote for the other side? If so, they would be acting in a way that our Founders would recognize. Electors were intended to be men of rank and wisdom whose judgment would guard against a runaway election, and if there were a kind of candidate whom the Founders intended to stop from assuming the presidency of this country, it is personified by Donald Trump. This is a man who has repeatedly demonstrated contempt for the Constitution, and an eagerness to pursue tyrannical powers, such as his pledge to rewrite libel laws to make it easier to punish those who criticize him—a practice that the Founders suffered under during colonial rule and expressly forbade in the First Amendment.

Were a conscientious member of the Electoral College to refuse to cast a vote for Trump, he or she would be undertaking a duty that was debated and discussed at the creation of the American Republic.

How exactly could this happen? If Trump eked out a bare 270-268 electoral vote win, it would take only two electors willing to vote against their state’s popular will to put him below, and Clinton at, the magic number. (In the event no candidate hits 270, the House of Representatives, which will almost surely be controlled by the GOP, would then elect the next president, presumably picking Trump.)

Until he stepped down last fall, one Republican elector in Georgia said he would consider not voting for Trump even if Trump won his state. Undoubtedly there are other electors, still serving, who are considering doing the same. There are precedents for electors going rogue. In 1988, a West Virginia elector cast a vote for Democrat Lloyd Bentsen as president instead of the party’s chosen nominee—and the state winner—Michael Dukakis. In 1976, a Washington state elector cast his vote for Ronald Reagan over Republican Gerald Ford. In 1972, a Virginia elector cast a vote for the Libertarian candidate over the statewide winner, Richard Nixon.

None of those electors went to jail or, as far as I know, suffered any serious consequences. They voted their conscience. And if one can do it, would two be such a stretch?

Depriving Donald Trump of an Electoral College victory would be an unprecedented and audacious act, especially for longtime Republican loyalists. No one would undertake it lightly. I neither invite nor indict the possibility.

But in contemplating their vote, any wavering electors might want to keep in mind some wisdom from Hamilton: “If we must have an enemy at the head of Government, let it be one whom we can oppose, and for whom we are not responsible, who will not involve our party in the disgrace of his foolish and bad measures.”