The nation’s 538 electors will vote at noon local time on Monday for the next president of the United States — 306 are expected to vote for President-elect Donald Trump and 232 for Democratic candidate Hillary Clinton.
But the votes won’t be counted until a joint session of Congress on Jan. 6. If at least 37 of Trump’s electors defect — unprecedented in U.S. history — deciding who becomes the 45th president could get interesting. In all likelihood, though, Trump still moves into the White House on Jan. 20.
Electors are often just a rubber stamp, but this year they’ve been targeted by an aggressive lobbying campaign encouraging them to defy the popular vote of their states. Hollywood liberals cut an ad urging electors to vote their “conscience,” and Clinton campaign chairman John Podesta wants the electors to receive intelligence briefings about Russian cyberattacks on him and other senior Democrats. Electors have reported being barraged with thousands of emails, telephone calls, and even death threats.
So far, several electors have publicly stated they intend to vote against their states’ popular elections in attempt to block or protest Trump’s presidency. Some are Clinton electors who want to vote for an alternative Republican, while others from states that went red promised to vote against Trump. Prominent Harvard University law professor Lawrence Lessig, who partnered with a law firm to counsel electors who might want to defect, claims to know as many as 20. So how many will defect and vote against the will of their states?
“That’s the $6 million question, isn’t it?” Pippa Norris, a Macguire Lecturer on Comparative Politics and professor at Harvard and Sydney universities, told VICE News. She characterized the chances that all 37 electors defect as “remarkably unlikely.”
Throughout U.S. history, less than than 1 percent of electors have ever voted against their states’ results. Low probability aside, one of three scenarios could play out if enough electors defect.
A new majority
If 38 Trump electors and all Clinton electors change their votes and rally behind another candidate — even one not elected by their party’s primary — he or she would assume the presidency.
The two major parties don’t have another obvious candidate to select, though, as Norris pointed out. Republicans attacked each other so frequently during the primary, “there’s nobody else standing,” she said. And Bernie Sanders’ policies veer too far left for many of the Republican electors to defect to him.
Along the same lines, 38 Trump electors could vote for Clinton, handing her the majority vote and thus, the presidency.
But state laws limiting the ability of electors to change their votes complicate the decision. Thirty states have laws that limit elector freedom to ensure they follow the popular vote in their state. Some states impose fines or even criminal penalties to those who choose to defect. For example, a Colorado judge recently ruled that electors who do not vote for Clinton, the winner in the state, could be charged with a misdemeanor carrying a potential $1,000 fine and a year in prison. The judge also empowered Colorado’s secretary of state to replace any so-called “faithless” electors with people who will follow the law.
Based on the 1952 Supreme Court case Ray v. Blair, however, there’s an argument to be made that state laws like Colorado’s could violate the Constitution.
Brought by an Alabama elector who declined to commit his support of the Democratic nominees for president and vice president, the case found that requiring potential electors to sign such a pledge did not violate the 12th Amendment. The justices, however, “refused to address whether the pledges were enforceable, reserving that issue for a later day,” Derek Muller, associate professor of law at Pepperdine University, told VICE News.
Lessig takes that to mean states can impose only moral obligations, but not legal ones, on electors. “That wasn’t decided, but that was expressly assumed in the opinion,” he told VICE News. “I am eager the law be clear — so we can respect it or change it.”
An elector in Colorado has already challenged the state’s law. If thought to substantially impact the election, elector freedom could once again end up in the high court, currently split 4-4.
Some states, like Minnesota and Montana, however, won’t accept the vote of electors who defect and would find replacements. That could make defying the voters effectively impossible for electors in some states.
Of course, the electors could also vote as intended and elect Trump.
A scenario more probable than 270 electors voting for anyone but Trump would be if no candidate receives a majority of electoral votes. The decision would then go to the House of Representatives, which would select the president from the three candidates who receive the most electoral votes.
Even if electors force a tie, the House would likely choose to elect Trump again. Each state within the House places one vote based on a vote among that state’s representatives. This voting method gives Republicans an enormous advantage because of their strength in middle America. As Trump showed in November, there are simply more red states than blue states, even if more Democrats than Republicans vote in the country overall.
The House has decided the president only twice: once in 1801 because of a tie between Aaron Burr and Thomas Jefferson, and again in 1825 because no candidate received the majority.
Congress objects to the vote
When a joint session of Congress reads the results of the Electoral College vote in early January, at least one senator and one member of the House can file an official objection in writing that an electoral vote wasn’t “regularly given.” Congress must then suspend counting Electoral College votes, and each chamber will debate the objection separately for up to two hours.
If one chamber of Congress sustains the objection and another rejects it, then the governor would decide which candidate receives its state’s disputed electoral votes. For example, Ohio Gov. John Kasich could have the sole power to award Ohio’s electoral votes to Clinton even though more Ohio voters supported Trump.
If both the Senate and the House vote to accept the objection, then the disputed electoral votes are not counted. Republicans have majorities in both chambers of Congress, so it’s unlikely that they would sustain any such objection. More likely is that Republicans file objections against faithless electors to prevent their protest votes from being counted.
Even if objections against Trump are somehow approved, they would likely only deny him a majority of the electoral college which would send the election to the House of Representatives. And again, Trump would likely win.
But “nobody knows because it’s never happened before,” Norris said.
Only two objections have been successfully filed since 1877 when Congress’ right to object became law. In both cases, 1969 and 2005, Congress voted to dismiss the objections, and the electoral votes were counted as intended.
“It is the most convoluted law, and Congress knew at the time they wrote it that it didn’t make any sense, but it was a compromise,” Ohio State law professor Edward Foley, who published a book this year on the history of disputed elections, told VICE News. “You’ve got to be honest and say there’s a huge amount of uncertainty in this.”