If the Electoral College result turns out to be Trump 270, Hillary 268, or a 269-269 tie, I think there is real possibility that we will see one or two Electoral College electors for Trump - or perhaps even more - who will “vote their conscience” and switch over to Hillary, or maybe vote for some third candidate (like the 2004 elector who voted for John Edwards.)
Sure, electors are selected for fanatical party loyalty - but we’ve never had a candidate like Trump, and there has never been a GOP nominee like Trump in a while, who could get a significant number of Republicans vehemently opposed to him becoming President - and the temptation to change history, with just one ballot’s difference, would be immense.
By the way - suppose that the election does come down to a 269-269 tie; the House would decide the election, but are they legally limited to only Clinton and Trump, or could the GOP try to have someone else become president? (Given that the House will likely remain in Republican hands, a 269-269 vote likely leads to a Republican presidency.)
Similar to what I said in this thread, it will depend on who controls the new House and Senate (remember, the new Congress starts on January 3 (20th Amendment), and the electoral votes are counted three days later (3 USC 15)). If one party controls them both, then that party will challenge any counts where faithless electors switched from that party to the other one; if it’s a split, then it will happen with states where the governor is from that party as well, as “the votes of the electors whose appointment shall have been certified by the executive of the State” (also 3 USC 15) are used if the House goes one way and the Senate goes the other.
Interesting - since everyone on the ballot not named Trump or Hillary is likely to get 0 EVs, the House could legally select Johnson, Stein or someone else on the ballot for POTUS - since they’re technically all tied for 3rd place in EVs.
Trump carries the right combination of states to expect 270 EVs, and squeaking out a 270-268 win. Republican leadership pressure two Trump electors to be faithless, voting in favor of a candidate the party leadership would prefer.
The whole mess gets thrown to the House. Now there are three candidates the House can choose among, Trump, Clinton and the Chosen One. Republican party leadership pushes for the votes to support their preferred candidate. And we end up with someone as president other than Trump or Clinton.
That was a mistake made by an elderly man serving as a Minnesota Elector. He noticed it immediately, and tried to correct it, but the (Republican) Secretary of State refused to allow him to do so, thus depriving John Kerry of one electoral vote. But it wasn’t an intentional vote for someone else, or a ‘faithless elector’.
I’d be pretty surprised if the Hillary campaign let someone who wasn’t dependable onto their slate of electors. So a Bernie protest vote seems pretty unlikely.
But the Trump campaign was reportedly pretty lackadaisical in finding delegates for the RNC convention. If they take a similar approach to signing up electors, I could see a Johnson vote or two slipping through.
If Trump wins states with 270 EV and an elector from a state that supposedly binds electors legally should defect and vote, say, for Johnson, there will lawsuits to end all lawsuits. I predict a unanimous supreme court to disallow the vote. Only the Republicans are crazy.
If that happens, it just gets kicked to the House, which would presumably elect Trump anyways (I can’t imagine the House would be Dem controlled in a scenario where Trump whens the majority of electors).
This is actually an interesting question, although I tend to side with Frank. It’s not totally ridiculous, however, to see the board as follows:
tie 1. Trump-269
tie 1. Clinton-269
tie 3. Everyone else over age 35, natural born citizen, 14 years a U.S. resident–0
So the House is free to choose from that list.
ETA: The House must “from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.” The plain text suggests only three, but what if the board was:
tie 3. Stein-3
Would the plain text prohibit votes for Stein or Johnson because the number of candidates “exceed” three?
The list is actually a physical list with actual names sent to Congress by the electors. So if someones names isn’t on that list, they can’t receive votes. If there are only two names, than thats it (note to, the House votes from a number of candidates “not exceeding three”, there’s no requirement that there be three people).
The question of a tie for third place is less clear though. My WAG is that the House would have to chose three out of the four names and then vote on those. But its certainly open to different readings.
Let me update my last board so the numbers add up correctly.
tie 3. Johnson-3
tie 3. Stein-3
There cannot be votes cast for all four candidates because that number is “exceeding three.” But if I am a Johnson or a Stein supporter, I would argue against excluding my candidate as one of the eligible three.