The Electoral College: What happens next? (Don’t get your hopes up)

The Electors vote state by state on Monday. I’ve been receiving a bunch of questions about the Electoral College and what happens next. The bottom line is that the Electoral College needs to agree on one single candidate with a simple majority of 270 votes to decide the election. If the 233 Democratic electors and at least 37 defecting Republican electors cannot agree on a single candidate, the presidential selection moves to the House, and the House will certainly pick Trump.

 

Let’s go step by step through the 12th Amendment, ratified in 1802 to clean up the mess after the infamous presidential election between Jefferson vs. Adams and then Jefferson vs. Burr. I hear there’s a Broadway play about it or something. Anyway, the original constitution’s electoral college process gave the presidency to first place and the vice presidency to second place, but the framers did not envision party tickets. Because every elector had two votes, the Democratic-Republican electors cast both ballots for Jefferson and his running mate Burr, and they forgot to coordinate to “spoil” one single vote to give Jefferson a one-vote lead over Burr. The accidental tie had to be resolved by the House, and that opened the door for Burr’s perfidy and 37 rounds of voting before Jefferson struck political bargains to win the presidency.

So here is the 12th Amendment, summarized and quoted:

Step 1: “The Electors shall meet in their respective states and vote by ballot for President and Vice-President…. they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President … The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;-The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.”

The bottom line is that a candidate needs a bare majority to be elected. Today, that number is 270 out of 538. To block Trump from getting a majority, 37 Republican electors need to vote for someone other than Trump (and none of the 233 Democratic electors can vote for Trump).  But then the election goes to the House:

Step 2: “[I]f such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote… a majority of all the states shall be necessary to a choice.”

The House then votes from the top three candidates from the electoral college. They cannot just debate and debate and stall until they agree on Ryan, or Kasich, or Romney, or Cruz, or Jeb Bush, or whomever. They are locked into Trump, Clinton, and whomever might come in third on Monday. That’s not a lot of choice and not a lot of time to coordinate to find a single alternative.  Note that this vote is not a majority vote by members, but a vote by state delegation. The Republicans will have a significant majority in terms of members, but an even bigger majority of state delegations. I think the number is about 35 state delegations, but  I haven’t done an exact state-by-state count, but all they need is 26. There are a lot of Dakotas and Carolinas, but not a lot of Californias and New Yorks. [Update: my rough count of House delegations is 32 Republican states, 17 Democratic, 1 tie.]

I want to be clear: it is worth the effort to delay and obstruct Trump’s election. It would be great to keep undermining Trump’s legitimacy by forcing the race to go to the House, and it would give the public more time to find out a few more details about the Trump campaigns involvement with Russian hacking and Trump’s business conflicts of interest, etc. But realistically, the House Republicans are not going to choose Clinton or a third-place finisher over Trump. Some of them might not like Trump, but they dislike Trump for very different reasons. Some are tea partiers, some are libertarians, some are free traders, some are establishment conservatives. They are not going to agree that Clinton or (let’s say) Paul Ryan or Mitt Romney would be better. And if they would prefer Ryan or Romney in the abstract, these House members would be petrified of an uprising against them: in the next primary or worse. Moreover, it’s not clear which alternative candidate would agree to serve as president under these conditions of backlash. And additionally, there is not enough time for these Republican defectors to coordinate and agree which alternative candidate would 1) have the best chance of winning the House, and 2) agree to serve.

So in order to avoid the House vote entirely, the 270 electors (233 Democrats and 37 Republicans) would all have to agree on one single candidate, and that candidate would need to be willing to serve after such a shocking turn of events.  Clinton is not going to win 37 Republicans. Kasich, Ryan, or Romney are not going to win all 233 Democrats with so little time left to convince them all. And moreover, many of those 233 Democrats and 37 Republicans would have to be willing to face fines and penalties in many states for voting against the state’s popular majority result. There is not enough time to assure them that this defiant vote is going to be effective.

There are two more things to remember: 1) Two Republican electors already decided they could not vote for Trump. But instead of standing up and building a group, they cowardly resigned.  2) Very few electors have defied their state’s vote in American history. The most “faithless electors” were in 1876, but that was unusual, in that Greeley, the losing presidential candidate, died between the election and the electoral college meeting, and the electors did not want to vote for a dead guy. In the twentieth century, a small number of the “conscientious electors” defected because they preferred a more racist candidate, and a very small number were voting a protest against the electoral college itself (one elector in 2000 with Bush v. Gore, when you might have expected more).

Larry Lessig at Harvard claims that 20 or 30 electors, behind the scenes, have expressed interest in defecting. I hope he’s right. Lessig is a brilliant scholar. But there is a big difference between asking questions and actually going through with it, and we would be hearing more about their plans or coordinating around a single alternative candidate if they were very serious. I don’t think this movement is going to succeed if it is totally under the radar. And if it seems like a backroom conspiracy, those electors might be less likely to follow through on Monday.

I would love to be wrong. I would love to be even more shocked by Monday’s electoral college results than I was by the Nov. 8th election day results. But I just want everyone to be realistic, and that partly means being realistic about the cowardice and madness of the modern Republican Party’s leadership. If they are willing to cover up for Vladimir Putin, they are willing to do almost anything to get Trump into the White House.

[Update on Dec. 15: I’ve heard a few people hope that the Electoral College gets postponed somehow. Who has the power to postpone the Electoral College? Not the Obama administration. The problem is that Congress has already passed a statute setting the date for the Electoral College (“the Monday after the second Wednesday in December,” so it’s always mid-December). Here’s the congressional statute:
http://codes.lp.findlaw.com/uscode/3/1/7
To move the date, Congress would have to quickly revise that date, and there is neither the time nor the will to get that through a hyper-partisan pro-Trump Congress. It’s not up to the Obama administration to change it without Congressional approval. And it’s not up to the federal courts. It’s theoretically possible, but with the recounts settled, I see no legal foundation for the courts to intervene, even if they could find a Constitutional basis for ignoring the statute or inserting a new constitutional interpretation to avoid the date). The Courts know that the law creates a solution for such a problem: not a back-up date for the Electoral College, but a back-up body, the House of Representatives. It’s fine to make all the phone calls you want, but there are going to be many more crises and more activism over the long haul. We need to stay focused and engaged in sustainable, practical ways, too.]

 

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.

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