Could members of the electoral college go rogue on Trump?
Donald Trump. Photo by a katz / Shutterstock.com
The election may not be decided in November, even if there are no hanging chads and disputed vote counts.
That’s because the electoral college doesn’t cast votes for president and vice president until December, and the votes aren’t counted by Congress until January, Pepperdine University law professor Derek Muller wrote in March for the Washington Post.
Muller and other constitutional scholars are considering scenarios where state legislatures choose the electors, or the chosen electors don’t vote in accord with the presidential candidate selected by the voters of their state.
The U.S. Constitution gives states the power to appoint the electors “in such manner as the legislature thereof may direct,” Muller writes in the article, which is noted by the Huffington Post. That means state legislatures could pass laws returning to themselves the power to appoint electors, Muller says.
In Texas, for example, the legislature could reclaim its power and vote for an alternative to Donald Trump such as former GOP nominee Mitt Romney, former Texas Gov. Rick Perry or U.S. Sen. Ted Cruz. That could deny Hillary Clinton the 270 electoral votes she needs to win and would throw the election into the House of Representatives. The candidate chosen by the Texas electors would be one of the top three vote-getters that the House would be obligated to consider.
Writing at his own blog, South Texas College of Law professor Josh Blackman considers a scenario in which the electors refuse to vote for the candidate who received a majority of the state vote. He cites this information from FairVote: While 29 states bind their electors to vote for the candidate winning the popular vote, 21 states do not.
“Contrary to what you may have been taught in school,” Blackman writes, “we do not have a democracy.”
The New York Daily News also looks at the rogue-elector scenario, though the newspaper has a slightly different count—it says 26 states and Washington, D.C, bind electors. And those laws have not been tested in court, Harvard history professor Alexander Keyssar tells the New York Daily News.
Electors could defect or even cast a blank ballot, giving Hillary Clinton a victory or throwing the election into the House of Representatives, according to the newspaper. Each state would vote for one of three candidates who received the most votes in the electoral college. The Senate would decide on the vice president in a similar vote.
Muller looks at yet another scenario at his Excess of Democracy Blog, one he dubs a “Trojan horse” electoral college. Almost every Republican presidential elector has not yet been formally selected under the rules of their political parties, he says. As parties choose their electors in the coming weeks, they could appoint a slate that expressly intends to support another ticket. Maybe it would be Pence-Trump instead of Trump-Pence, or maybe it would be Romney-McCain.
Then the parties would explain very clearly to voters that even though the ballot says Trump-Pence, the electors would actually be voting for the different ticket they are backing. “Trump-Pence” would only be the code name for the real slate. The votes cast by that state’s electors could deny the win to Clinton, or could throw the election to the House.
University of Chicago law professor Eric Posner is troubled by the idea of a rogue electoral college and other scenarios in which “elites” try to block a democratically elected president from taking office.
“Trump will likely lose the election just because all of offensive statements will cost him political support, as they should; that’s how democracy works,” Posner writes at his blog. “And if he doesn’t, our panicking liberal elites will need to decide whether to throw their lot against democracy. …
“If they do, then they will need to acknowledge that the threat to constitutional order is not Trump, but they.”
