Donald Trump has another problem
If Donald Trump somehow ekes out a narrow win in the US presidential election, the presidency could still be snatched away from him by a handful of his Republican party critics.
The election currently taking place is not directly for the presidency itself. Voters are actually choosing the 538 members of a panel called the Electoral College, which in turn plays a key role – but not necessarily a final one – in choosing the next US President.
Each US state is allocated a number of Electoral College places roughly in proportion to its population.
During the election the actual voters will be presented with ballot papers showing the party ‘tickets’ with the candidate’s names (‘Trump-Pence’, ‘Clinton-Kaine’ and so on).
But when voters mark a vote for one of those tickets, what actually happens is that a list of candidates named by the political party of each candidate is then awarded the Electoral College places for the relevant state.
While each political party’s presidential nominees are selected by the party’s national conventions held in July, the lists of individual Electoral College candidates are named by the state branch of each political party.
For example in the state of Virginia – which has 13 College seats – the Republican Party of Virginia has officially nominated a slate of 13 specific individuals to fill the College places.
To makes things easier for voters, the electoral law in each state then arranges for the slates of names to be represented on the ballot papers by the names of the national nominees. (In some states the individual elector candidate names also appear; in some they do not.)
Electoral College nominees are typically long-serving party members or leading officials of the state party, perhaps including public figures already holding elected office. But their parties may select the College candidates for any number of reasons.
The presidential campaigns will have various levels of internal influence in each state over which individuals are selected. In Pennsylvania the College candidates are named by the national candidate’s campaigns. Other options include nomination by party executives, nomination at state party conventions or even direct selection through primary elections.
During the primary season earlier this year Donald Trump alienated party figures in many states, and many College candidates will have been active supporters of Trump’s several primary opponents for the party’s presidential nomination.
However they are selected, the appointment of the potential College members certainly does not absolutely guarantee that every individual elected College member will then vote for their party’s nominee as President.
Those who do vote otherwise – and historically there have been a number of cases – are termed ‘faithless electors’.
The US Constitution requires after being elected in November, the Electoral College members for each state meet (separately within each state) on December 19 and cast a vote for one person to be President and for another to be Vice President. The only restriction is that the two people named on each College member’s vote cannot both be residents of the college member’s own state.
US political tragics regularly speculate and fictionalise about potential Electoral College shenanigans. The usual scenario is that somehow – deliberately or by accident – faithless electors hand the presidency to the other party. Such an event has never occurred in the 57 times the United States has held these elections over more than two centuries.
But in 2016 the new version of the problem – created by Donald Trump’s own behaviour – is that some Republican Electoral College electors may be so unwilling to accept their party’s candidate that they may vote faithlessly. With hundreds of senior party figures and current and former elected officials publicly denouncing Trump as unfit for office, the prospect is no longer so fanciful.
Indeed, the prediction that among around 270 leading Republican party figures not one would emerge who finds Trump unacceptable for office would now seem to be the least likely outcome.
Trump’s campaign is failing, but anything could happen in the last three weeks of the campaign. If Trump ‘wins’ the election, it would almost certainly be very narrowly. If he wins in enough states to make up to a slim lead over Hillary Clinton in College votes, it would take just a handful individual College electors to desert Trump to stymie his bid for the presidency.
If independent Evan McMullin wins the six College votes in the state of Utah, the prospect moves even closer.
In 31 of the US states electoral laws require College members to cast their formal ballots for the two official candidates of their party. These laws generally impose fines in the order of $1,000, which is probably not enough to deter a highly motivated College member from changing their vote. The secrecy of the College ballot procedures in most states complicates the issue, but may also make faithless voting more likely.
Many observers question whether these laws are fully enforceable. The US Supreme Court has previously held that the fines and other imposts placed on College electors are legally valid, but whether an actual presidential vote cast in breach of these laws is valid or not has never been tested.
To understand how all this would then play out, we need to return to the last stages of the presidential election process.
After the December 19 day of Electoral College voting the 538 votes cast (most or all of which will likely be public knowledge shortly thereafter), are officially counted in Washington on January 6.
If one individual has won 270 votes to be president, they are declared elected. In any other case the three individuals for whom the most College votes were cast to be president are immediately referred to a special sitting of the members of the US House of Representatives.
If no candidate wins 270 Electoral College votes, who becomes president
is decided by the United States House of Representatives
At this special sitting there are just 50 votes: one for the collective ‘delegation’ of House members from each state. The House members participating in this decision will not, however, be those recently elected in November 2016, but those elected two years before at the 2014 elections, because the turnover to the new members does not occur until a fortnight later on January 20.
The House must provide an absolute majority – 26 state delegations in support – for one of the three candidates to be chosen as president. The House must continue voting again and again if necessary until they reach agreement on such an outcome.
How those 50 state delegations meet and determine their single vote for a president is not entirely clear, but we know that the 435 House members elected in November 2014 add up to 33 state delegations with a majority of Republican members, 14 states with a majority of Democratic members, and 3 states (Maine, New Hampshire and New Jersey) with a tie between numbers of party members.
That overwhelming balance of delegations would suggest that the Republican party obviously take the presidency in this scenario. But would it be Donald Trump that the House would choose?
Supposing the tally of College votes is something like Trump 267, Clinton 261, and 10 votes for others (cast by various faithless Trump electors). What matters next is who is the third-placed candidate eligible for consideration. If enough faithless electors have co-ordinated to name one candidate – perhaps the ticket’s deputy, Governor Mike Pence – then that person becomes the third option from whom the Republican delegations in the House of Representatives can choose the next president.
But perhaps independent Evan McMullin has won Utah’s 6 College votes, complicating matters. (Indeed, this whole scenario could emerge even without any faithless electors if Utah votes for McMullin and if Clinton and Trump are so close that just Utah’s 6 votes hold the balance in the College.)
If any such scenario emerges, the politics of the 2016 election race would be thrown into the hands of the 247 Republican party Congressmen elected in November 2014 (or in by-elections during the term) – some of whom may have just recently been voted out of office, and many of whom despise and have publicly disowned Donald Trump.
The Speaker of the House of Representatives, Republican Paul Ryan – who has ceased campaigning for his party’s nominee – could end up presiding over a House decision to reject Donald Trump (image: NewJersey.com/AP)
It is precisely because such bizarre and ‘undemocratic’ possibilities exist that the Electoral College system has many critics. There are often calls to replace the system with a simple process where Americans vote for the presidency directly and the national vote majority determines the winner.
But even leaving aside the history that the College system – it was adopted in the 1780s as a balancing device between the several independent-minded state political regimes, and in an age when travel and communication were far more limited – defenders of the Electoral College argue that it is precisely for such scenarios as these – when the candidate with only a plurality of support has enough personal negatives that a majority wish to reject that candidate – that the College system makes sense.
The electoral design issues would not be the main focus of attention, however, if the scenario above unfolds. The public reaction and real politics would be explosive.
If an ‘elite’ of ‘corrupt politicians’ were to deem Donald Trump so unfit for office that they replace him with a sudden alternative, all Trump’s complaints about the Washington establishment and rigged elections will have come true – at least for him and his many millions of supporters.
Updates: media reports discuss self-declared faithless electors on the Republican slate in Georgia, and on the Democratic slate in Washington state.
On Elections 