Posted by Curt on 10 November, 2016 at 8:44 pm. 5 comments already!



I knew there’d be pie-in-the-sky Democratic structural theories after Tuesday about how to stop future Trumps, from eliminating the electoral college in favor of a national popular vote to blue-state secession wankery. (Although I do think secession will go mainstream in time, especially on the right as America’s demographics change.) I … did not expect that some lefties would cope with defeat by semi-seriously suggesting an electoral college hail-mary this year.

The argument for a delegate revolt at the GOP convention this summer was that (a) primary voters are a fraction of their own party and a tiny share of the national electorate, and (b) the Republican Party is a private entity that can do ultimately what it likes. If it wants to eliminate the primary system altogether and let Reince Priebus throw darts at a board to pick the nominee, and it’s willing to accept the political consequences of doing that, hey. If you can’t accept being disenfranchised, you can walk — switch parties, go independent, boycott the GOP, you name it. Voting in a primary is a privilege. Voting in a national election isn’t a privilege, it’s a statutory right (although not a constitutional one) exercised by around half the national adult population and exercisable by most of it. If the results in the electoral college are overturned, there’s no place to “walk” to except Canada. Even the delegate/elector analogy doesn’t work. Many delegates are longtime party activists who’ve worked hard behind the scenes for years towards its success; many electors are randos of no special distinction added to slates essentially as political favors for cronies, to give them the thrill of casting a ceremonial vote. You have a problem in either case in invalidating a democratic result, but given the vastly greater stakes and much diminished authority of electors, it’s an enormous problem when applied to the electoral college.

And yet. Let’s get a taste of this insane idea, shall we?

According to the Constitution, chosen electors of the Electoral College are the real people who will vote for president, when they meet on Dec. 19 in their respective state capitals.

However, there is technically nothing stopping any of the electors from voting their conscience and refusing to support the candidate to whom they were bound, or from abstaining from voting altogether…

Clinton would need more than 20 GOP electors to go rogue and vote instead for her — a mighty tall order.

Even then, the new, Republican-controlled Congress meets Jan. 6 to approve the electoral college vote, and would certainly vote to void any roguery, handing the victory firmly back to Trump.

By no means is this the only piece kicking around this theory today. There’s a diary item at Daily Kos and one at HuffPo and … a second at HuffPo, just for starters. HuffPo is really into its electoral-college fantasies, apparently. The idea is that Hillary, as the likely (but not certain) winner of the popular vote, has the higher moral claim on the office when Trump is, supposedly, obviously unqualified and unfit. Shouldn’t the electors recognize that?

Here’s how this would work. There are 25 states that bar electors by law from defying the outcome of the popular vote in their state’s election. Assuming that a law like that would stand up to constitutional scrutiny, that means Hillary would need to peel away “faithless electors” from Trump exclusively from the pool of 25 states that doesn’t bar electors from voting however they like. There are two ways she could do that. One is by flipping enough electors outright to win the electoral college with 270 votes on December 19th. That would take more than 20 votes, though, contra the excerpt above; as of this afternoon she’s sitting at 233 EVs, which means she’d need 37 people to decide they’re willing to flout the results of an election in which more than 120 million voted to pick the presidency. The second path to winning the presidency would be a two-step process: Instead of convincing electors to vote for her, she could persuade them to vote for anyone except Trump. Trump is sitting at 290 EVs right now, so it would take only 21 defectors to do that. With no candidate at 270, the House would then have to pick the president. If I understand the law correctly, there’s no way the House could short-circuit that by voting to “void” the votes of faithless electors on January 6th, when the electoral college votes are formally counted, as the piece quoted above suggests. If an elector wants to change their vote from Trump to someone else and they’re not prohibited by statute by doing so, then they can do it.

But then Hillary runs into a new problem. With the House set to choose the president, why wouldn’t they just choose Trump anyway? He won on election night fair and square, Republicans will say. Even if he ends up second in the popular vote, so what? That’s why we have the electoral college. It’s for exactly that reason that the two HuffPo pieces don’t actually recommend that electors choose Hillary as president; they want the electors to choose a different Republican instead — John Kasich, Paul Ryan, Mitt Romney, whoever. It’s a pure anti-Trump argument, not a pro-Clinton one.

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