Electoral college revolt? Unprecedented Situation Raises Odds of Election Being Decided by Electors or House

Since at least one elector has already publicly announced that he will not vote for the candidate he is pledged to, the door is open wide for other rogue electors – sometimes called “faithless electors” – to likewise not only break their pledges, but perhaps for the first time in history to actually deny the election to the candidate with the most electoral votes.

UPDATED with more information on the electoral college “revolt”

Robert Satiacum, an elector in Washington State pledged to Hillary Clinton, says he definitely will not cast his electoral vote in the Electoral College for her if she wins his state’s popular vote; a win which appears to be virtually certain given current polling.

Bret Chiafalo, another Democratic Washington elector, says that he is considering joining Robert. Some Republican electors have also expressed reluctance if not uncertainty about voting for Donald Trump in the Electoral College; a growing possibility given some of the very recent revelations about him.

Even a few so-called “faithless electors” could change the outcome of the election by throwing their votes to the other candidate, or by pushing the race into the House of Representatives.

It appears that the law cannot stop this from happening, says public interest law professor John Banzhaf, whose studies of the Electoral College have become generally accepted and are now widely quoted.

Washington law [RCW 29A.56.340] provides that any “elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars.” But that tiny penalty is unlikely to deter any elector determined to make a point, and Satiacum has said that the penalty, even if it could be imposed, will not deter him.

Moreover, a federal judge recently held unconstitutional Virginia’s statute that provided penalties for delegates to party conventions who do not follow the results of the presidential primary.
Concern about faithless elector is not the only problem with the Electoral College.

Another is the very real chance of a “misfire” when the electoral vote winner is different from the winner of the popular vote. This has already happened three times in our history, and could well happen any time an election is close, notes Banzhaf.

Another concern is that voters living in different states have widely disparate voting powers.

Hypothetically, and given a random distribution of Democrats and Republicans, individual residents in California have a much higher chance of affecting the outcome of the election than voters in many other states.

But, since California almost always votes Democratic, there is little chance that any voters in the state could affect the outcome, especially compared to voters in populous swing states like Florida.

This is far from the “one man, one vote” aspiration repeatedly articulated by the courts, argues Banzhaf.

However, there are also a number of perceived problems with any of the alternative proposals to replace the Electoral College, including a direct election of the president, argues Banzhaf.

Under a direct election, it is feared that candidates would spend most of their time and resources in states with large populations and large numbers of electoral votes such as California, a state in which the cost to reach each voter is less than in many other more sparsely settled state.

Some political scientists also argue that a direct election would reduce the influence of minorities, especially African Americans, and result in undo influence by city dwellers.

No system of presidential election – Electoral College, direct election, voting by district, etc. – is perfect, argues Banzhaf, whose voting calculations almost produced a constitutional change years ago.

Electoral College photo

Electoral College

Photo by nordique

Some very unusual circumstances make this somewhat more likely than in the past, notes public interest law professor John Banzhaf, whose Electoral College studies are widely accepted.

In a close election, only a few electors who do not cast their electoral votes as they had pledged can change the outcome of the election, either by putting the candidate with a not quite enough electoral votes over the top, or perhaps even by throwing the presidential election into the House of Representatives.

Although there have been more than 150 instances in the past where electors changed their votes, in none has the outcome of the presidential election been fundamentally altered.

Many states have laws purporting to require electors to cast their electoral votes for the candidate to whom they are pledged, and/or to punish those who don’t. But these laws are of doubtful constitutionality, and courts may well choose not to enforce them.

For example, a federal judge recently held unconstitutional Virginia’s statute that provided criminal penalties for delegates to party conventions who do not follow the results of the presidential preference primary, saying that the statute “exceeds the powers retained by the Commonwealth of Virginia under the Constitution of the United States and cannot be enforced.”

In the very unusual if not unprecedented circumstances surrounding this election, rogue electors are more likely than in the past. Thus the following circumstances are at the very least possible, although the likelihood of any one or more occurring probably remains small.

Electors pledged to Donald Trump might be persuaded to switch their electoral votes by some recent events which occurred long after the electors agreed to stand for office. For example, the revelations about his so-called “locker room” statements, Trump’s alleged 2006 affair outside his marriage, etc., might persuade some female electors to change their minds.

Similarly, the various “October surprises” Hillary Clinton is now facing – including those from recently leaked emails, or even the FBI’s re-opening of inquiries – could be sufficiently persuasive.

Another – albeit a much less likely scenario – would be for an indictment supported by apparently overwhelming evidence to come down between her apparently winning on Election Day, and the day of her inauguration. In such a case, the Democratic National Committee may conclude that she cannot effectively govern as president, and that she must be stopped before she could be inaugurated and issue a pardon to herself.

Thus they might agree upon a consensus Democratic candidate – e.g., Joe Biden – and try to persuade all Democratic electors to vote for him instead of Clinton.

If enough electors did so, the next president might be someone who nobody voted for.

If many but not all of the Democratic electors agree to switch their votes to a compromise Democratic candidate, no person might have the required number of electoral votes. In such a case, the House would determine the next president, who would likely be Trump.

No one, of course, can predict the future, but the events surrounding this election have been so unpredictable from the beginning that no possibilities can be safety ignored, argues Banzhaf.