Counting Electoral Votes

Joseph M. Bessette and Gary J. Schmitt have a report at AEI titled Counting Electoral Votes: How the Constitution Empowers Congress—and Not the Vice President—to Resolve Electoral Disputes

Key Points

• The vice president does not have “plenary” authority under the Constitution to settle disputes over Electoral College votes.
• Analysis of the Constitution’s history, text, and underlying principles, along with early practices, legislation, and debates, affirms that Congress possesses that authority.
• Accordingly, the Electoral Count Reform Act of 2022, which recognizes congressional authority to resolve electoral disputes and denies the vice president any substantive power in these matters, is fully consonant with constitutional theory and practice.

The  concluding paragraphs:

Key principles of the American constitutionalorder strongly contradict the notion that the framers vested in the vice president the unilateral authority to resolve Electoral College disputes: (1) the framers’ understanding of responsible, or accountable, republican government; (2) checks and balances in the constitutional structure; (3) Madison’s principle that “no man is allowed to be a judge in his own cause because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity” and (4) the rule of law. 

The framers may rightly be criticized for, apparently, not having considered the problem of contested electoral votes when they designed their fairly intricate system of presidential elections. Fortunately, the document they crafted fully empowers Congress to devise procedures for resolving such controversies.

Contingent Election and the Death of a Candidate

In response to the insurrection, Congress has fixed problems with the Electoral Count Act. But the system still has dangers. Suppose that no candidate wins a majority. At The Hill, Kevin Kosar writes:

But wait, in an additional twist, let’s imagine one of the candidates dies (naturally or by assassination) or is incapacitated by a medical condition before the House convenes to select the president. What is the House of Representatives supposed to do?

It is not clear, as Michigan State University Professor Brian Kalt has been warning America since 2016. “The Constitution limits the House of Representatives to choosing from among the top three electoral-vote winners,” he explains. “If one of the finalists dies, no replacement can meet the qualification of having finished in the top three.”

Fortunately, Congress can fix this problem. Section 4 of the 20th Amendment states, “The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.”

Indeed, Congress expected a statutory fix to be made for this “dead candidate” problem when it ratified this amendment in 1933. But as with the Electoral Count Act, our national legislature has failed to act proactively.

Professor Kalt lies out a few ways that Congress could tackle this problem in a 2017 law article, as does the Commission of Continuity of Government in a recent report. The simplest remedy would be to authorize electors to vote for the deceased candidate’s running mate.

January 6 and President Selection

 From the J6 Committee:

At the Constitutional Convention 233 years ago, the framers considered but rejected multiple proposals that Congress itself vote to select the President of the United States.143 Indeed the Framers voiced very specific concerns with Congress selecting the President. They viewed it as important that the electors, chosen for the specific purpose of selecting the President, should make the determination rather than Congress:

It was desireable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pre-established body, but to men, chosen by the people for the special purpose, and at the particular conjuncture.144

The Framers understood that a thoughtful structure for the appointment of the President was necessary to avoid certain evils: “Nothing was more to be desired, than that every practicable obstacle should be opposed to cabal, intrigue and corruption.”145 They were careful to ensure that “those who from situation might be suspected of too great devotion to thepresident in office” “were not among those that chose the president.”146 For that reason, “[n]o senator, representative, or other person holding a place of trust or profit under the United States, can be of the number of theelectors.”147

...

In testimony before the Select Committee, [VP counsel Greg] Jacob described in detail whythe Trump plan for Pence was illegal:

[T]he Vice President’s first instinct, when he heard this theory, was that there was no way that our Framers, who abhorred concentrated power, who had broken away from the tyranny of George III, would ever have put one person—particularly not a person who had a direct interest in the outcome because they were on the ticket for the election—in a role to have decisive impact on the outcome of the election. And our review of text, history, and, frankly, just common sense, all confirmed the Vice President’s first instinct on thatpoint. There is no justifiable basis to conclude that the Vice President has that kind of authority.155

 143. The framers specifically considered and rejected two constitutional plans that would havegiven Congress the power to select the Executive. Under both the Virginia and New Jersey Plans, the national executive would have been chosen by the national legislature. See Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102Mich. L. Rev. 545, 592, 595 (2004); see also 1 The Records of the Federal Convention of 1787,at 21, 244 (Max Farrand ed., 1911) (introducing Virginia and New Jersey Plans), available at https://oll.libertyfund.org/title/farrand-the-records-of-the-federal-convention-of-1787vol-1; James Madison, Notes of the Constitutional Convention (Sep. 4, 1787) (Gov. Morris warning of “the danger of intrigue & faction” if Congress selected the President), available at https://www.consource.org/document/james-madisons-notes-of-the-constitutionalconvention-1787-9-4/

144. The Federalist No. 68, at 458 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). 

145. The Federalist No. 68, at 459 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

146. The Federalist No. 68, at 459 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

147. The Federalist No. 68, at 459 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). See also U.S.
Const. art. II, § 1, cl. 2 (“but no Senator or Representative, or Person holding an Office of
Trust or Profit under the United States, shall be appointed an Elector”).

`155. Select Committee to Investigate the January 6th Attack on the United States Capitol, Hearing on the January 6th Investigation, 117th Cong., 2d sess., (June 16), available at https:// www.govinfo.gov/committee/house-january6th

 

The Oath and Rusty Bowers

 From the final report of the January 6 committee:

In Arizona, a primary target of President Trump’s pressure, and ire, was House Speaker Russell “Rusty” Bowers, a longtime Republican who had served 17 years in the State legislature. Throughout November and December, Bowers spoke to President Trump, Giuliani, and members of Giuliani’slegal team, in person or on the phone. During these calls, President Trump and others alleged that the results in Arizona were affected by fraud and asked that Bowers consider replacing Presidential electors for Biden withelectors for President Trump.249 Bowers demanded proof for the claims of fraud, but never got it. At one point, after Bowers pressed Giuliani on the claims of fraud, Giuliani responded, “we’ve got lots of theories, we just don’t have the evidence.”250 Bowers explained to Giuliani: “You are askingme do something against my oath, and I will not break my oath.”251

The VP and the Counting of Electoral Votes

At AEI, Joseph Bessette and Gary Schmitt find no support for the view that the Vice President has unilateral constitutional authority to resolve electoral vote disputes.

Our analysis proceeds in four stages. First, we show that the framers viewed the Vice Presidency as a rather insignificant office and, thus, one unlikely to be given the constitutional power to decide presidential elections. Second, we show that the relevant constitutional language strongly suggests that Congress possesses the authority to legislate procedures to resolve electoral disputes. Third, we show that in the congressional debates of 1789 to 1805, every major alternative for locating the power to resolve electoral disputes – that it resides in Congress, in the state legislatures, or among the electors themselves when they meet in their states – was advanced except for one: that it resides in the office of the Vice Presidency. This silence, in our view, speaks volumes. Finally, we maintain that the principles and structure of the American constitutional order are inimical to allowing the discretion and will of a single individual (especially one who often has a personal stake in the outcome) to decide presidential elections. In brief, the history of the office, the text of the Constitution, founding-era debates, and the underlying logic of the Constitution do not support the view that the Vice President possesses unilateral constitutional authority to resolve electoral vote disputes.

Americans Want to Scrap the Electoral College

Rebecca Salzer and Jocelyn Kiley  at Pew:

Around six-in-ten U.S. adults (63%) say the way the president is elected should be changed so that the winner of the popular vote nationwide wins the presidency, while 35% favor keeping the current Electoral College system, according to a Pew Research Center survey conducted June 27-July 4, 2022. There has been a modest increase in the share of Americans who favor changing the way presidents are elected: In January 2021, the last time the Center asked this question, 55% said the system should be changed, while 43% supported maintaining the existing system.

The current electoral system in the United States allows for the possibility that the winner of the popular vote may not be able to secure enough Electoral College votes to win the presidency. This was the case in both the 2000 and 2016 elections, which were won by George W. Bush and Donald Trump, respectively.

Pence on Overturning Elections

 

House Size and the Electoral College

Keith Rothfus at National Affairs:

Expanding the House would amplify those voices in our national government, thereby returning a greater measure of sovereignty to the people. It would also have positive effects on more peripheral issues, including campaign finance, the diversity of thought in Congress, and the influence of special interests.
...

But what should the number of members be? Whatever quantity chosen will be unavoidably arbitrary in some respects, but as a starting point, I would propose a House of 601 members. Based on the 2020 census, this would give the average member a constituency of 551,000 persons — which is more in line with the constituencies of representatives in comparable democracies. If the United States had the same average number of residents per representative as other democracies in the Organization for Economic Cooperation and Development do, then the House should have around 593 members. The number I am proposing simply rounds that figure up to the nearest hundred, then adds one additional member to avoid tie votes.

Changing the number of seats in the House would also affect the Electoral College, since each state receives the number of electors equal to the number of senators and representatives it has in Congress. With a House of 601 representatives and a Senate of 100, the Electoral College would consist of 704 electors (the additional three electors are from the District of Columbia). The following table shows how apportionment in the Electoral College would have looked during the 2010s with a House of that size.

To assess the impact that increasing the number of members in the House would have on the Electoral College, I evaluated whether any of the presidential elections since 1980 would have changed if there had been 601 representatives instead of 435. Table 2 compares how many electoral votes presidential candidates received with a 435-member House with what they would have received with a 601-member House.

As the table indicates, the only election that would have resulted in a different outcome was the razor-thin Electoral College victory George W. Bush secured over Al Gore in 2000. With an Electoral College based on 435 House members, Bush received 271 electoral votes and Gore received 267 — a four-vote margin in favor of Bush. If there had been 601 House members that year, Gore would have eked out an Electoral College win by the same number of votes, winning 354 to 350.

Counting the Electoral Votes

Today a joint session of Congress will count the electoral votes.  From CRS:

The joint session does not act on any objections that are made. Instead, the joint session is suspended, the Senate withdraws from the House chamber, and each house meets separately to debate the objection and vote whether, based on the objection, to count the vote or votes in question. Both houses must vote separately to agree to the objection by simple majority. Otherwise, the objection fails and the vote or votes are counted. (3 U.S.C. §15 provides that “the two Houses concurrently may reject the vote or votes.”)

...

The general grounds for an objection to the counting of an electoral vote or votes would appear from the federal statute and from historical sources to be that such vote was not “regularly given” by an elector, and/or that the elector was not “lawfully certified” according to state statutory procedures. The statutory provision first provides in the negative that “no electoral vote ... regularly given by electors whose appointment has been lawfully certified ... from which but one return has been received shall be rejected” (3 U.S.C. §15). The provision then reiterates for clarity that both houses concurrently may reject a vote when not “so regularly given” by electors “so certified” (3 U.S.C. §15). It should be noted that the word lawfully was expressly inserted by the House in the Senate legislation (S. 9, 49th Congress) before the word certified. Such addition arguably provides an indication that Congress thought it might, as grounds for an objection, question and look into the lawfulness of the certification under state law.

The objection that votes were not “regularly given” may, in practice, subsume the objection that the elector was not “lawfully certified,” because a vote given by one not “lawfully certified” may arguably be other than “regularly given.” Nevertheless, the two objections are not necessarily the same. In the case of the “faithless elector” in 1969, described above, the elector was apparently “lawfully certified” by the state, but the objection raised was that the vote was not “regularly given” by such elector. In the above-described 2005 case, the objection was also based on the grounds that the electoral votes “were not, under all of the known circumstances, regularly given.”

Nixon Announces that JFK Has Won

On January 6, 1961, after the official counting of the electoral votes in a joint session of Congress, Vice President Richard Nixon announced the election of his 1960 opponent, John F. Kennedy.

Mr. Speaker,  since this is an unprecedented situation,  I would like to ask permission to impose upon the time of the Members of this Congress to make a statement which in itself is somewhat unprecedented.

I promise to be brief. I shall be guided by the 1-minute rule of the House rather than the unlimited time rule that prevails in the Senate.

This is the first time in 100 years that a candidate for the Presidency announced the result of an election in which he was defeated and announced the victory of his opponent. I do not think we could have a more striking and eloquent example of the stability of our constitutional system and of the proud tradition. of the American people of developing, respecting, and honoring institutions of self-government. 

In our campaigns, no matter how hard fought they may be, no matter how close the election may turn out to be, those who lose accept the verdict, and support those who win. And I would like to add that, having served now in Government for 14 years, a period which began in the House just 14 years ago, almost to the day, which continued with 2 years in the Senate and 8 years as Vice President, as I complete that 14-year period it is indeed a very great honor to me to extend to my colleagues in the House and Senate on both sides of the aisle who have been elected; to extend to John F. Kennedy and Lyndon Johnson, who have been elected President and Vice President of the United States, my heartfelt best wishes, as all of you work in a cause that is bigger than any man's ambition, greater than any party. It is the cause of freedom, of justice, and peace for all mankind.

It is in that spirit that I now declare that John F. Kennedy has been elected President of the United States, and Lyndon B. Johnson Vice President of the United States.

Members of the Congress, the purpose for which the joint session of the two Houses of Congress has been called pursuant to Senate Concurrent Resolution 1, having been accomplished, the Chair declares the joint session dissolved.

Electoral Vote: What Happens Today

 From CRS:

December 14, 2020: Electors Vote in Their States Monday after the second Wednesday in December of presidential election years is set (3 U.S.C. §7) as the date on which the electors meet and vote. In 2020, the meeting is on December 14. Electoral college delegations meet separately in their respective states and the District of Columbia at places designated by their state legislature. The electors vote by paper ballot, casting one ballot for President and one for Vice President. The electors count the results and then sign six certificates, each of which contains two lists, one of which includes the electoral votes for the President, the other, electoral votes for the Vice President, each of which includes the names of persons receiving votes and the number of votes cast for them. These are known as Certificates of the Vote, which the electors are required to sign. They then pair the six Certificates of Ascertainment provided by the state governors with the Certificates of the Vote, and sign, seal, and certify them (3 U.S.C. §§8-10). The six certificates are then distributed by registered mail as follows: (1) one certificate to the President of the U.S. Senate (the Vice President); (2) two certificates to the secretary of state (or equivalent officer) of the state in which the electors met; (3) two certificates to the Archivist;  and (4) one certificate to the judge of the U.S. district court of the district in which the electors met (3 U.S.C. §11).

Legislatures Cannot Override the Popular Vote

Some crackpots are floating the idea that state legislatures should ignore the election outcome and select electors on their own.

They cannot do so.

Adav Noti at Just Security:

The Constitution has two main provisions that govern the selection of presidential electors. First, the Constitution says that each state’s legislature has the authority to determine that state’s manner of choosing its electors. Second, the Constitution gives Congress the power to decide when the electors are chosen, which Congress has done by enacting a federal law designating the Tuesday after the first Monday in November — Election Day.

Proponents of the legislative-appointment theory read too much into the first constitutional provision and forget about the second. Although every state has chosen its electors by popular vote for more than a century, most constitutional experts agree that, under the legislature’s authority to choose the “manner” of appointing electors, a legislature could theoretically decide before Election Day to cancel the popular vote for presidential electors and instead appoint them directly. But Congress’s enactment of a uniform national Election Day under its own constitutional authority — which supersedes any contrary state actions — prohibits the choice of electors from being made based on elections held or laws passed after Election Day.

In other words, under the constitutional timing provision as implemented by federal law, the absolute last day a state legislature could have decided to appoint the state’s presidential electors for this election was November 3, 2020. Once that date passed, the determinative popular votes had all been cast, and therefore the legislature’s authority to change the state’s manner of appointing electors in 2020 passed as well.

Electoral Scenarios

 Louis Jacobson at PolitiFact:

What happens to a candidate if they die sometime before Election Day?

The timing of a death matters.

If the death happens prior to Election Day, then whichever is the relevant party organization — the Republican National Committee or the Democratic National Committee — would consult with its members and choose a new nominee, under slightly different rules established by each party.

If the death occurred earlier than October, sometime shortly after the conventions, the parties would have needed to update their ballot lines in every state. But with ballot deadlines now passed, ballots printed, and early voting underway in many places, that’s not feasible.

"What’s most likely is that the election would take place on time, with the deceased or incapacitated candidate’s name on the ballot, and then there would be a question if legislatures would allow presidential electors of each state to vote for someone other than the deceased candidate," wrote Richard L. Hasen, a professor of law and political science at the University of California-Irvine.
What happens if a candidate dies after the votes have been certified but the electoral college hasn’t cast its votes yet?

If this were to happen, "the electors may coordinate upon a substitute name, presumably one agreed upon by the national party committee," said Gregory Koger, a University of Miami political scientist. A natural choice for the parties would be the vice presidential candidate on the ticket. Alternatively, the party could urge electors to continue voting for the deceased candidate.

Electors in recent history have been chosen by each party based on strong party loyalty, and some states punish electors for choosing someone other than their party’s nominee. So most would probably follow the party’s guidance. Still, they could have some degree of free agency, and if the election is close, only a few mavericks could cause difficulties.

"Electors are both plausibly free agents and plausibly bound by state law," tweeted Matt Glassman, a senior fellow at Georgetown University’s Government Affairs Institute. "That is, they might feel free to vote for whoever they want, or they might be compelled by state law to still vote for the deceased candidate."

There could be other types of "mischief," Hasen wrote. For instance, legislatures could decide to forward a slate of electors to Congress that ran counter to the voters’ intent. That would be most likely in states where the legislature is of a different party than the winner of that state’s presidential election.

Richard H. Pildes, a constitutional law professor at New York University, floated one potentially messy scenario: The party choosing the replacement nominee could be deeply divided, and electors do not coalesce around a single replacement candidate. This could prevent a single candidate from winning a majority in the electoral college. In that scenario, the House of Representatives would have to choose from the top three Electoral College vote-getters, with each state getting one vote.

"In that case, one or two faithless electors deciding to support, say, Sen. Mitt Romney and allowing him to enter the top-three could potentially give us a candidate the people didn’t even see on the ballot," Pildes wrote.

Currently, the Republicans have a narrow edge in state delegations in the House, even though Democrats control a majority of seats in the chamber. But the election results this fall could end up giving Democrats an edge.

There is one historical precedent, though one that probably doesn’t carry much weight today. Presidential nominee Horace Greeley, who lost the 1872 election to President Ulysses S. Grant by a wide margin, died on Nov. 29, 1872. When his 66 electors cast their ballots, 63 of them voted for someone else, mostly not for his running mate. But Grant’s margin made the exercise purely academic.

Americans Want to Abolish the Electoral College

Megan Brenan at Gallup:

Heading into the 2020 presidential election, three in five Americans favor amending the U.S. Constitution to replace the Electoral College with a popular vote system, marking a six-percentage point uptick since April 2019. This preference for electing the president based on who receives the most votes nationwide is driven by 89% of Democrats and 68% of independents. Far fewer Republicans, 23%, share this view, as 77% of them support keeping the current system in which the candidate with the most votes in the Electoral College wins the election.

Goodbye, Faithless Electors

Syllabus: CHIAFALO ET AL. v. WASHINGTON
591 U. S. ____ (2020)
No. 19–465. Argued May 13, 2020—Decided July 6, 2020

Held: A State may enforce an elector’s pledge to support his party’s nominee—and the state voters’  choice—for President. Pp. 8–18. 

(a) Article II, §1 gives the States the authority to appoint electors “in such Manner as the Legislature thereof may direct.” This Court has described that clause as  conveying the broadest power of determination” over who becomes an elector. McPherson v. Blacker, 146 U. S. 1, 27. And the power to appoint an elector (in any manner) includes power to condition his appointment, absent some other constitutional constraint. A State can require, for example, that an elector live in the State or qualify as a regular voter during the relevant time period. Or more substantively, a State can insist (as Ray allowed) that the elector pledge to cast his Electoral College ballot for his party’s presidential nominee, thus tracking the State’s popular vote. Or—so long as nothing else in the Constitution poses an obstacle—a State can add an associated condition of appointment: It can demand that the elector actually live up to his pledge, on pain of penalty. Which is to say that the State’s appointment power, barring some outside constraint, enables the enforcement of a pledge like Washington’s.

Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does. Article II includes only the instruction to each State to appoint electors, and the Twelfth Amendment only sets out the electors’ voting procedures. And while two contemporaneous State Constitutions incorporated language calling for the exercise of elector discretion, no language of that kind made it into the Federal Constitution. Contrary to the Electors’ argument, Article II’s use of the term “electors” and the Twelfth Amendment’s requirement that the electors “vote,” and that they do so “by ballot,” do not establish that electors must have discretion. The Electors and their amici object that the Framers using those words expected the Electors’ votes to reflect their own judgments. But even assuming that outlook was widely shared, it would not be enough. Whether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page. Pp. 8–13.

(b) “Long settled and established practice” may have “great weight in a proper interpretation of constitutional provisions.” The Pocket Veto Case, 279 U. S. 655, 689. The Electors make an appeal to that kind of practice in asserting their right to independence, but “our whole experience as a Nation” points in the opposite direction. NLRB v. Noel Canning, 573 U. S. 513, 557. From the first elections under the Constitution, States sent electors to the College to vote for pre-selected candidates, rather than to use their own judgment. The electors rapidly settled into that non-discretionary role. See Ray, 343 U. S., at 228–229. Ratified at the start of the 19th century, the Twelfth Amendment both acknowledged and facilitated the Electoral College’s emergence as a mechanism not for deliberation but for party-line voting. Courts and commentators throughout that century recognized the presidential electors as merely acting on other people’s preferences.  And state election laws evolved to reinforce that development, ensuring that a State’s electors would vote the same way as its citizens. Washington’s law is only another in the same vein. It reflects a longstanding tradition in which electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen. Pp. 13– 17. 193 Wash. 2d 380, 441 P. 3d 807, affirmed.

 KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined as to Part II.

Americans Want to End the Electoral College

Andrew Daniller at Pew:

A majority of U.S. adults (58%) say the Constitution should be amended so the presidential candidate who receives the most votes nationwide wins, while 40% prefer to keep the current system in which the candidate who receives the most Electoral College vote wins the election.

Support for amending the Constitution has increased slightly since the period immediately following the 2016 election. In a November 2016 CNN/ORC survey, roughly half of adults (51%) favored amending the Constitution to eliminate the Electoral College. And in a March 2018 Pew Research Center survey, 55% favored taking this step.

The Electoral College and Slavery

At The New York Times, historian Sean Willentz revises a previous opinion, finding that the Framers did not devise the Electoral College for the purpose of perpetuating slavery.

First, the slaveholders did not need to invent the Electoral College to fend off direct popular election of the president. Direct election did have some influential supporters, including Gouverneur Morris of New York, author of the Constitution’s preamble. But the convention, deeply suspicious of what one Virginian in another context called “the fury of democracy,” crushed the proposal on two separate occasions.

...

The alternative, and winning, plan, which became known as the Electoral College only some years later, certainly gave the slaveholding states the advantage of the three-fifths clause. But the connection was incidental, and no more of an advantage than if Congress had been named the electors.

Most important, once the possibility of direct popular election of the president was defeated, how much did the slaveholding states rush to support the concept of presidential electors? Not at all. In the initial vote over having electors select the president, the only states voting “nay” were North Carolina, South Carolina and Georgia — the three most ardently proslavery states in the convention.

... 

When it first took shape at the convention, the Electoral College would not have significantly helped the slaveowning states. Under the initial apportionment of the House approved by the framers, the slaveholding states would have held 39 out of 92 electoral votes, or about 42 percent. Based on the 1790 census, about 41 percent of the nation’s total white population lived in those same states, a minuscule difference. Moreover, the convention did not arrive at the formula of combining each state’s House and Senate numbers until very late in its proceedings, and there is no evidence to suggest that slavery had anything to do with it.

The Magnitude of Bush's Victory

In 1988, George H.W. Bush, the 41st president, got a higher share of the popular and electoral vote than any presidential candidate since then.

                                    Popular %        Electoral Vote

1988    Bush 41           53.4                 426

1992    Clinton, B.       43.0                 370

1996    Clinton, B.       49.2                 379

2000    Bush 43           47.9                 271

2004    Bush 43           50.7                 286

2008    Obama             52.9                 365

2012    Obama             50.9                 332

2016    DJT                  46,0                 304

Getting Electors to Flip

Clinton is ahead in the popular vote, and The New York Times projects that she will eventually lead Trump by 1.2 percent.

The last time an election produced such a result, CMC students went into action.

Agitators Probe for Defectors Among Electors
Politics: If a few of these chosen loyalists break faith with Bush, it would hand the presidency to Gore. But that effort is an uphill battle.
December 07, 2000|SCOTT MARTELLE | TIMES STAFF WRITER

As the two major parties near the end of their vicious war for the White House, Democratic activists and would-be political reformers are quietly pressing Republican electors to do the unthinkable: Vote for Democrat Al Gore.

Less a movement than a series of individual and overlapping acts, the agitators seek to split away two or three votes from among George W. Bush's anticipated 271 Republican electors when the all-important electoral college convenes Dec. 18.

If three Bush electors defect and vote for Gore, then the Democrats would win the White House regardless of the current court battles. If two defect, the election would be sent to the Republican-dominated House of Representatives.

While few expect the agitators to succeed in creating what are known as "faithless electors," their efforts add yet another odd twist to an election that has already set new standards for bizarreness.

The biggest hurdle is the nature of the electors themselves--most are selected as a payoff for years of party loyalty. And Gore himself has rebuffed the efforts.

"We're very proud to have earned the popular vote support during this election, but we are not seeking nor in anyway trying to get electors to switch over," Gore spokesman Chris Lehane said Tuesday.

Lehane, however, acknowledged that, in the unlikely event the effort is successful, Gore would have little choice but to accept the presidency, despite earlier comments by the vice president that he would reject the votes.

"They can vote for whomever they choose, and if Gore gets 270 votes in the electoral college he's the president," said Erwin Chemerinsky, a professor at the USC Law School. "He has no authority to concede the election to Bush in a legal sense, though if he does by announcement then it's less likely that the electors would [flip]."

Those involved in the effort range from two Claremont McKenna College seniors dismayed by the prospect of seating a president who placed second in the popular vote, to a New Hampshire lab technician who urged his state's four electors to reject tradition for the public will.

"I think there is corruption, and the election was unfair in Florida," said Thomas Richard, a Concord, N.H., Gore supporter. "Electors have some discretion in who they vote for in New Hampshire. They're not bound by state law to vote for the elector that they're pledged to. So they ought to use their discretion, especially when the election was so close and the popular vote was greater for Gore."

In Pennsylvania, T.J. Rooney, a state representative from the Lehigh Valley and a Democratic elector, has undertaken his own campaign to buttonhole four or five Republican electors he knows in other states to entice them to vote for Gore.
"They listen to what I have to say," Rooney said. "Perhaps they're just listening out of kindness or collegiality, but I think there's a strong case to be made. . . . I am firmly of the opinion that if every vote was counted in Florida, [Gore] will have earned the 25 electors."

David Enrich is one of the Claremont McKenna students behind the Citizens for True Democracy Web site at[ http://www.oocities.org/dave_enrich/ctd/vwa-media.html ] that urges people to lobby Republican electors to vote for Gore. The Web site has received more than 54,200 visits since it was posted two days after the election.

Enrich said he and roommate Matt Grossmann of Columbia, Mo., are targeting the process, not the candidates, and would have sought Gore defectors had the circumstances been reversed.

"This is an effort on our part to draw attention to a system that we think is grossly unfair and anti-democratic and in great need of reform," said Enrich, 21, of Boston. "We think this is kind of a golden opportunity to reform it."

But Republicans see something more nefarious going on--an attempt by Democrats to circumvent the process.

"It is in keeping with some of the usual tactics we've seen by the Democrats since the election," said Bush spokesman Ray Sullivan. "Ultimately, we believe that Republican electors across the country are and will continue to be committed to Gov. Bush and do not believe that they will be persuaded to turn their backs on their party or on our nominee."

While some Republican electors have been swamped with e-mails, others said they're aware of the campaign but have not been contacted. Still others said they have heard from more fellow Republicans urging them to stand firm than from people encouraging them to flip.

One of the more overt efforts began with Bob Beckel, a longtime Democratic analyst and chairman of Walter F. Mondale's 1984 White House campaign. Beckel announced in the days after the November election that he was amassing information on Republican electors to try to find ways to persuade them to shift allegiances.

Beckel has since said he meant only to gather information on how to contact the electors. But his initial announcement unleashed a storm of protests by Bush supporters. Repeated attempts to reach Beckel for comment wer

The Electoral College Hail Mary

It is too late to replace Trump on the ballot. Voting has already started in some states.  In others, the ballots have already gone to the printer.  But Rick Hasen notes an alternative:

But if Trump withdraws, and in fact even if he doesn’t, there is one other possible way out: the Electoral College. When we cast our votes for president they are actually cast for electors from each state (based roughly on population size) who then cast ballots for president. If Trump is chosen in some states, those electors could vote for Pence, or Romney, or Kasich, or whoever. There are some laws that bar “faithless” electors from casting votes for anyone who did not win the popular vote in a state, but I have a hard time believing either the Republican-controlled House or a court (because it raises a political question) would stop the actions of a faithless elector. Ned Foley games out how conflicts would work under the Twelfth Amendment; the bottom line is that if Trump got more votes than Clinton and Republicans control we could well end up with a President Pence. (When no one gets a majority in the Electoral College the House votes on a one state delegation, one vote rule.)

The reason this is such a Hail Mary is because it depends on a huge number of unlikely contingencies: Trump withdraws or the Republican leadership abandons him yet still get voters to choose Trump on the ballot, the “Trump” campaign gets more electoral college votes than the Clinton campaign (requiring a lot of thinking and effort on the part of battered voters), electors chosen by the Trump campaign to serve the Republican ticket (some of whom LOVE Donald Trump) would act faithlessly and vote for Pence or someone else, and Republicans control the Senate. All of this is possible, but not bloody likely.