by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States at Illinois Institute of Technology Chicago-Kent College of Law
On Monday, Dec. 19, 2016, the 538 members of the Electoral College will gather in their states to cast their votes for president. The expected outcome is that they will elect Donald Trump. But this year there has been a surprising amount of discussion of a different result, thanks to efforts of some electors themselves and a variety of academics, writers and advocates.
Article II, section 1 and the Twelfth Amendment of the Constitution provide the framework for the Electoral College. Every state has a number of electors equal to their congressional representation – two Senators plus the state’s House delegation. (Under the Twenty-third Amendment, the District of Columbia also has three electors.) The state legislatures have the authority to determine how the electors are selected and there is no requirement that the selection be by popular vote. Nor is there a requirement that the states assign their electors on a winner-take-all basis, as almost all do. (Maine and Nebraska are the exceptions.)
Once the electors are selected, they meet in their states and cast their ballots. They certify the votes and send them to Congress, which will meet in early January to count the votes. To become president, a candidate must receive a majority – at least 270 – of the electoral votes. If no candidate receives 270 votes, then the House of Representatives, voting in state delegations with each state receiving one vote, must choose between the top three electoral-college vote-getters.
This system is an odd way to run an election in the 21st century. Its roots are in compromises made at the Founding to protect slavery and (arguably) to ensure the influence of smaller states. Some argue that there was no expectation that the electors would exercise independent judgment. But as Alexander Hamilton explained in Federalist 68, the Framers were concerned that the people might be taken in by an unqualified candidate and they wanted to ensure that “[t]alents for low intrigue, and the little arts of popularity” would not displace the “requisite qualifications” for the presidency. And, he added, “every practicable obstacle should be opposed to cabal, intrigue, and corruption.” Finally, he argued that the electoral college would protect the country against “the desire in foreign powers to gain an improper ascendant in our councils.” It is hard to read this explanation for the Electoral College without wondering if Hamilton was prescient.
Following Hamilton’s logic, a group of Democratic electors, calling themselves the Hamilton Electors, launched an effort to persuade other electors – and in particular Republican electors – to vote for a different Republican who these Democrats would also support. (Names mentioned include John Kasich, Mitt Romney, and John McCain.) Even if there were no consensus on a particular candidate, if 37 Republican electors refuse to vote for Trump, the election will automatically go to the House of Representatives. (If 270 Democrats and Republicans together voted for a third candidate, they might be able to actually elect that person, though there are obstacles to that possibility and the House would likely be the final decisionmaker.) The Hamilton Electors have been joined by at least one Republican, Christopher Suprun, who publicly stated that he will vote for a Republican other than Trump.
Not surprisingly, this effort faces obstacles. For one thing, 29 states have laws that purport to bind electors to vote in a particular way. But challenges to these laws are underway in at least three states and are making their way up the appellate ladders. As I have argued elsewhere, these laws should be held unconstitutional.
As a practical matter, most electors are unlikely to do something unpredictable even if they are legally free to vote their conscience. Electors are slated by the parties and they tend to be party loyalists. Trump has reportedly been threatening political reprisals against electors who do not vote for him, but even without threats, all electors surely understand that there would be significant negative consequences to breaking with their party. And undoubtedly, any elector who might be considering such an action would want to be very circumspect about announcing it publicly; Suprun and lawyers working with him and other electors have received death threats.
And of course, the Hamilton Electors are pushing against more than 200 years of norms and practice. It would be, to say the least, unprecedented for enough electors to break with their party to affect the result of the election.
But only 37 Republican electors – a mere twelve percent of the 306 expected to vote for Trump – would need to break ranks for Trump to be denied a clean Electoral College victory. And since the election, Trump has demonstrated his contempt for the Constitution – as George W. Bush’s White House ethics counsel argues, the electors cannot ethically vote for him because he will be violating the Emoluments Clause even as he vows to uphold the Constitution. Other post-election events likewise demonstrate Trump’s unfitness. He has disrupted longstanding delicate relationships involving other nuclear powers with freewheeling phone calls with international leaders, without so much as a State Department briefing. And U.S. intelligence officials have concluded that Russia’s cyber-interference with the election was designed to elect Trump. Under these circumstances, if the Electoral College rejects Trump, it will give Alexander Hamilton yet another reason to be proud.