# Any chance the electors could have elected Hillary? **URL:** \ **Category:** Factual Questions\ **Created:** [November 10, 2016, 6:38pm UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386 "2016-11-10T18:38:10Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![CC](https://avatars.discourse-cdn.com/v4/letter/c/f1d935/32.png) [@CC](https://boards.straightdope.com/u/CC)\ **Post date:** [November 10, 2016, 6:38pm UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/1 "2016-11-10T18:38:10Z")
In some states, the electors are required to vote for the choice of the majority in their state. In other states, that’s not the case. Could the electors in the states where they are not obligated to vote for the choice of the majority have elected Hillary Clinton (if that was their choice) even if the majority had voted for Trump? Were any of those states critical to the outcome? ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [November 10, 2016, 6:46pm UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/2 "2016-11-10T18:46:24Z")
The Electors haven’t voted yet, that happens on December 19th. While some states have statutes that require Electors to be faithful, in practice it’s unknown whether these could withstand Constitutional scrutiny and actually be enforced. So the answer is: nobody knows unless someone tries it. There have been rogue electors several times before, but never in large enough numbers to actually affect the outcome of an election. (On most occasions it has just been one person.) ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [November 10, 2016, 7:27pm UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/3 "2016-11-10T19:27:22Z")
Here’s a question. Let’s say that a state had a faithless elector previously while the current law was in effect. The state declines to prosecute. 2016 there is a faithless elector and the state decided to prosecute. Is there any defense that that state to declined to prosecute before? ---
**Author:** ![CC](https://avatars.discourse-cdn.com/v4/letter/c/f1d935/32.png) [@CC](https://boards.straightdope.com/u/CC)\ **Post date:** [November 10, 2016, 7:35pm UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/4 "2016-11-10T19:35:23Z")
> [@friedo](#): > > The Electors haven’t voted yet, that happens on December 19th. > > While some states have statutes that require Electors to be faithful, in practice it’s unknown whether these could withstand Constitutional scrutiny and actually be enforced. So the answer is: nobody knows unless someone tries it. > > There have been rogue electors several times before, but never in large enough numbers to actually affect the outcome of an election. (On most occasions it has just been one person.) So technically it’s not a done deal. The mind reels. ---
**Author:** ![Pixel\_Dent](https://avatars.discourse-cdn.com/v4/letter/p/bc8723/32.png) [@Pixel\_Dent](https://boards.straightdope.com/u/Pixel_Dent)\ **Post date:** [November 10, 2016, 7:43pm UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/5 "2016-11-10T19:43:52Z")
> [@CC](#): > > In some states, the electors are required to vote for the choice of the majority in their state. In other states, that’s not the case. Could the electors in the states where they are not obligated to vote for the choice of the majority have elected Hillary Clinton (if that was their choice) even if the majority had voted for Trump? Were any of those states critical to the outcome? In each state each candidate has his own set of electors. In theory the electors that state voted for could vote for anyone they like. So in theory the answer to your question is yes. However, the Trump electors were selected by the Republican party in each state from among the most loyal members of the Republican party. I doubt you couldn’t convince even one of them to vote for Hillary. Historically from time to time some elector decides to vote for someone other than the candidate they were chosen to support. For instance Libertarian Toni Nathan was the first woman to receive an electoral vote back in 1972 when a Republican in VA broke ranks. But it’s very rare. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [November 10, 2016, 7:49pm UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/6 "2016-11-10T19:49:45Z")
> [@Saint\_Cad](#): > > Here’s a question. Let’s say that a state had a faithless elector previously while the current law was in effect. The state declines to prosecute. 2016 there is a faithless elector and the state decided to prosecute. Is there any defense that that state to declined to prosecute before? IANAL, but usually “someone else did it too and got away with it” is not a legal defense to a crime you are accused of. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [November 10, 2016, 7:53pm UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/7 "2016-11-10T19:53:54Z")
> [@CC](#): > > So technically it’s not a done deal. The mind reels. Worse, Congress doesn’t count the electoral vote until two weeks before Inauguration day, so it’s not a done deal until then. But Trump _will_ be sworn in on January 20th, so there’s no use getting your hopes up about any of this rogue Elector business. (Unless he dies, which is unlikely.) ---
**Author:** ![Tired\_and\_Cranky](https://avatars.discourse-cdn.com/v4/letter/t/a87d85/32.png) [@Tired\_and\_Cranky](https://boards.straightdope.com/u/Tired_and_Cranky)\ **Post date:** [November 10, 2016, 7:55pm UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/8 "2016-11-10T19:55:53Z")
> [@DrCube](#): > > IANAL, but usually “someone else did it too and got away with it” is not a legal defense to a crime you are accused of. There is in fact a cognizable defense for the scenario. The defendant could argue that selective prosecution by the state on impermissible grounds meant that the defendant was deprived of equal protection under the law. For example, if all white electors were allowed to vote for whomever they wanted but the one time a black elector tries it, he is thrown in jail to get back at him, he could argue that he was selectively prosecuted on on the basis of his race and that he should not be convicted. No cites, but Wikipedia says the selective prosecution defense is rarely successful. [Selective prosecution - Wikipedia](https://en.wikipedia.org/wiki/Selective_prosecution) ---
**Author:** ![CC](https://avatars.discourse-cdn.com/v4/letter/c/f1d935/32.png) [@CC](https://boards.straightdope.com/u/CC)\ **Post date:** [November 10, 2016, 8:47pm UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/9 "2016-11-10T20:47:17Z")
If 39 electors out of the 306 Republican electors choose to vote for Clinton on Dec. 19, about one or two per red state, she would win the electoral college majority. Trump would have 267 electoral votes, Clinton would have 271. If it’s a pipe dream, ok, and if it’s just a plot for a short story, ok. But it’s still possible. When the electors do cast their votes, must the House of Representatives accept them? Where in the Constitution is this explained? ---
**Author:** ![Boozahol\_Squid\_P.I](https://avatars.discourse-cdn.com/v4/letter/b/d9b06d/32.png) [@Boozahol\_Squid\_P.I](https://boards.straightdope.com/u/Boozahol_Squid_P.I)\ **Post date:** [November 10, 2016, 9:22pm UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/10 "2016-11-10T21:22:03Z")
> [@CC](#): > > If 39 electors out of the 306 Republican electors choose to vote for Clinton on Dec. 19, about one or two per red state, she would win the electoral college majority. Trump would have 267 electoral votes, Clinton would have 271. If it’s a pipe dream, ok, and if it’s just a plot for a short story, ok. But it’s still possible. When the electors do cast their votes, must the House of Representatives accept them? Where in the Constitution is this explained? The House of Representatives has almost nothing to do with the election of the President. The President of the Senate (currently Joe Biden) opens the ballots from the electors and does the counting in the presence of Congress. There is no certification of the results by congress, so I suppose there’s the possibility of Biden just lying about the results, but the votes themselves are public record so it wouldn’t stand up to much scrutiny. It’s in Article II, Section 1. ---
**Author:** ![jtur88](https://avatars.discourse-cdn.com/v4/letter/j/e9c0ed/32.png) [@jtur88](https://boards.straightdope.com/u/jtur88)\ **Post date:** [November 10, 2016, 9:32pm UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/11 "2016-11-10T21:32:44Z")
> [@Pixel\_Dent](#): > > However, the Trump electors were selected by the Republican party in each state from among the most loyal members of the Republican party. I doubt you couldn’t convince even one of them to vote for Hillary. . As I understand it, there is a pretty substantial number of Republican party loyalists who do not consider Trump to be a suitable bearer of their standard. But it’s too late now, because a withdrawal of Trump’s majority would just give the presidency to Hillary, which would not be an alternative of choice. In 1948, when Strom Thurmond of the Dixiecrats took 39 electors away from Truman in the general election, Truman still had enough to have a majority. If Truman had lost his majoirty, I bet the Dixiecrat electors pledged to Thurmond would have voted for Truman, rather than let Dewey win, and nobody would have protested. ---
**Author:** ![thelurkinghorror](https://avatars.discourse-cdn.com/v4/letter/t/7c8e57/32.png) [@thelurkinghorror](https://boards.straightdope.com/u/thelurkinghorror)\ **Post date:** [November 10, 2016, 11:32pm UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/12 "2016-11-10T23:32:12Z")
Just saw this article (NY Post, but pretty neutral, sidebar may be NSFW): [The one scenario that could still get Hillary into the White House](https://nypost.com/2016/11/09/the-one-scenario-that-could-still-get-hillary-into-the-white-house/) It includes a map of states that allow (don’t disallow) faithless electors. And it mentions two Republican electors who questioned whether they would vote Trump. ---
**Author:** ![gigi](https://avatars.discourse-cdn.com/v4/letter/g/a587f6/32.png) [@gigi](https://boards.straightdope.com/u/gigi)\ **Post date:** [November 11, 2016, 12:02am UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/13 "2016-11-11T00:02:01Z")
> [@DrCube](#): > > Worse, Congress doesn’t count the electoral vote until two weeks before Inauguration day, so it’s not a done deal until then. But Trump _will_ be sworn in on January 20th, so there’s no use getting your hopes up about any of this rogue Elector business. (Unless he dies, which is unlikely.) What happens if he dies? ---
**Author:** ![Bookkeeper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bookkeeper/32/281_2.png) [@Bookkeeper](https://boards.straightdope.com/u/Bookkeeper)\ **Post date:** [November 11, 2016, 12:17am UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/14 "2016-11-11T00:17:07Z")
> [@thelurkinghorror](#): > > Just saw this article (NY Post, but pretty neutral, sidebar may be NSFW): > > [The one scenario that could still get Hillary into the White House](https://nypost.com/2016/11/09/the-one-scenario-that-could-still-get-hillary-into-the-white-house/) > > It includes a map of states that allow (don’t disallow) faithless electors. And it mentions two Republican electors who questioned whether they would vote Trump. My understanding (given that I am neither an American nor a US Constitutional expert) is that the Electoral College votes would stand as cast, even by a “faithless” elector, as this is a federal constitutional issue and not subject to state law. Whether such an elector could subsequently be successfully prosecuted under state law has never been determined. ---
**Author:** ![CC](https://avatars.discourse-cdn.com/v4/letter/c/f1d935/32.png) [@CC](https://boards.straightdope.com/u/CC)\ **Post date:** [November 11, 2016, 12:57am UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/15 "2016-11-11T00:57:54Z")
Aha - even more interesting - suppose it went to SCOTUS to determine. The mind reels. ---
**Author:** ![E-DUB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/e-dub/32/403_2.png) [@E-DUB](https://boards.straightdope.com/u/E-DUB)\ **Post date:** [November 11, 2016, 1:10am UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/16 "2016-11-11T01:10:15Z")
The electors are party hacks (on both sides) and will do exactly what they’re told. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [November 11, 2016, 1:32am UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/17 "2016-11-11T01:32:31Z")
> [@CC](#): > > Aha - even more interesting - suppose it went to SCOTUS to determine. The mind reels. It’s hard to see a pathway to get to the Supreme Court. There’s a mythology that they decided the 2000 election, but the actual case was an appeal from a case heard by the Florida Supreme Court about the legality of recounting ballots. Could a case be made that a faithless elector violates state law and therefore needs to be decided by the various state courts, eventually winding up in the Supreme Court? Possibly. For a sufficient number to do so and have all the cases be decided together is a plot for a novel more than a realistic outcome. But that’s pretty much what it would take. The Supreme Court can’t just up and decide anything. They can only say whether a lower court’s decision is right or wrong. In 2000 that had the effect of stopping the recount at a point at which Bush was leading. Some writers, like Jeffrey Toobin in _The Nine_, have said that they made a political decision rather than a legally accurate one. I don’t have the technical knowledge to agree or disagree. I can say that the circumstances were unprecedented. Any possible case this year would also be unprecedented but in a different way. And a court of eight could be tied, which would let the lower court’s decision stand, so they wouldn’t even be deciding anything. ---
**Author:** ![CC](https://avatars.discourse-cdn.com/v4/letter/c/f1d935/32.png) [@CC](https://boards.straightdope.com/u/CC)\ **Post date:** [November 11, 2016, 1:51am UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/18 "2016-11-11T01:51:27Z")
Ok,\*\* Map\*\*, but it’s not like this year’s election isn’t unprecedented. A television celebrity/businessman of questionable ethics and no legal education or elective experience is pretty rare in the modern era. It may be the stuff of novels, but that doesn’t make it impossible. Improbable? Yes. ---
**Author:** ![aldiboronti](https://avatars.discourse-cdn.com/v4/letter/a/9fc348/32.png) [@aldiboronti](https://boards.straightdope.com/u/aldiboronti)\ **Post date:** [November 11, 2016, 1:56am UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/19 "2016-11-11T01:56:58Z")
The Republican electors are Republicans first and foremost. Even if they loathe Trump do you really think they’re going to hand the Presidency and choice of new SCOTUS judges to Hillary? Not a chance in hell. ---
**Author:** ![Tommy\_Bahama](https://avatars.discourse-cdn.com/v4/letter/t/278dde/32.png) [@Tommy\_Bahama](https://boards.straightdope.com/u/Tommy_Bahama)\ **Post date:** [November 11, 2016, 1:58am UTC](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386/20 "2016-11-11T01:58:05Z")
> [@gigi](#): > > What happens if he dies? The beauty of the electoral college. They would simply vote for a different candidate for president (in this case presumably Pence), and the party would give guidance on who to vote for VP. If a candidate were to die after electoral votes were cast or counted that may open up a different can, I would think the courts or congress (most likely both) would have get involved as the electoral vote is constitutionally mandated and dates are determined by law. The most reasonable scenario in my opinion would be to allow another electoral vote to be held and accepted by congress. [Next page](https://boards.straightdope.com/t/any-chance-the-electors-could-have-elected-hillary/771386.md?page=2)