# Hypothetical: The Electoral College overturns election, says Clinton won **URL:** \ **Category:** Politics & Elections\ **Created:** [November 25, 2016, 5:01pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973 "2016-11-25T17:01:34Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [November 26, 2016, 8:28pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/41 "2016-11-26T20:28:24Z")
There might be a spate of attacks - shootings, bombings, etc. - but talk of revolt is greatly exaggerated; there’ll be no revolution. But it might simply kick the can down the road and the Republicans will win in 2020. Chances are the 2018 midterms would go lopsided in the GOP’s favor. And with the 2020 victories and redistricting, the Republicans would have the ability to gerrymander for another decade. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [November 26, 2016, 9:20pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/42 "2016-11-26T21:20:33Z")
> [@HurricaneDitka](#): > > Accepting your hypothetical, that President-Elect Trump suffers the worst case of faithless electors in our history, and enough of them defect to Team Clinton to give her 270+ votes in the Electoral College, I imagine the Republican-held Congress would just refuse to certify the vote. After that, they’d pick the President and Vice-President themselves, and they’d pick Trump-Pence. At this stage of the hypothetical, I suggest it comes down to Trump and Clinton each taking the oath of office and the military would end up deciding who their commander-in-chief was. ---
**Author:** ![Stranger\_On\_A\_Train](https://avatars.discourse-cdn.com/v4/letter/s/13edae/32.png) [@Stranger\_On\_A\_Train](https://boards.straightdope.com/u/Stranger_On_A_Train)\ **Post date:** [November 26, 2016, 9:28pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/43 "2016-11-26T21:28:06Z")
> [@Bryan\_Ekers](#): > > At this stage of the hypothetical, I suggest it comes down to Trump and Clinton each taking the oath of office and the military would end up deciding who their commander-in-chief was. _sigh_ That is not even remotely how electoral challenges work in this country, and we would not want them to work in this way, ever. Stranger ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [November 26, 2016, 9:35pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/44 "2016-11-26T21:35:27Z")
No, it’s not how they do work now. It would, however, be how they would work if Congress refused to certify the results just because they didn’t like them. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [November 26, 2016, 9:36pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/45 "2016-11-26T21:36:22Z")
> [@Stranger\_On\_A\_Train](#): > > _sigh_ > > That is not even remotely how electoral challenges work in this country, and we would not want them to work in this way, ever. _sigh_ backatcha, chuckles. How they _normally_ work is that congress isn’t free to just ignore the college if they don’t like the result. Congress only acts if a clear winner can’t be chosen. What Ditka is describing is a elector revolt (which is technically allowed) followed by a congressional revolt (which isn’t) and if at \*that \*point, one of the candidates doesn’t withdraw, you’re in full constitutional crisis mode and global record on that sort of thing is often that the military intervenes. The _gentler_ alternative is that an elector complains to the Supreme Court, who hastily rules that congress cannot ignore the EC if they have a clear winner. If congress \*still \*refuses to certify, possibly there’s a standoff between the electors and congress, a lot of back-door dealing, and maybe eventually a corrupt bargain or two, followed by a lot of grumbling but life goes on. ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [November 26, 2016, 9:49pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/46 "2016-11-26T21:49:38Z")
> [@HurricaneDitka](#): > > Accepting your hypothetical, that President-Elect Trump suffers the worst case of faithless electors in our history, and enough of them defect to Team Clinton to give her 270+ votes in the Electoral College, I imagine the Republican-held Congress would just refuse to certify the vote. After that, they’d pick the President and Vice-President themselves, and they’d pick Trump-Pence. (Not my hypothetical; the op’s.) Except that doing that would not be constitutionally valid. Their job is to tally the electors votes. There is no option to refuse to certify valid electoral votes or to fallaciously declare the votes to be invalid. Doing thus would be a Congressional _coup_, overthrowing the results as determined by the rules of the constitution in order to install their choice. Is it your belief that a GOP dominate Congress would overthrow a constitutionally valid result because it did go the way they preferred or because they thought that the rules of the constitution were unfair? I’d expect that Chief Justice Roberts would refuse to administer the oath of office under that circumstance. ---
**Author:** ![WillFarnaby](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/willfarnaby/32/514_2.png) [@WillFarnaby](https://boards.straightdope.com/u/WillFarnaby)\ **Post date:** [November 26, 2016, 10:00pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/47 "2016-11-26T22:00:03Z")
> [@DSeid](#): > > The operative word there is “can.” > > Interesting bit about what the states _can_ do regarding requiring how electors vote is [the National Popular Vote Interstate Compact.](http://www.nationalpopularvote.com/written-explanation) States can, and so far 10 states and the District of Colombia, together worth 165 electoral votes have, each pass a bill that states that all of their electors are required to vote for the national vote winner, to take effect when enough states sign on that equal 270 electoral votes of greater. > > Would be nice if enough additional states did that which they can do. Interesting wrinkle: Such a compact would be unconstitutional without the consent of Congress. “In the United States of America, an interstate compact is an agreement between two or more states. Article I, Section 10 of the United States Constitution provides that “No State shall, without the Consent of Congress… enter into any Agreement or Compact with another State.”” > **[Interstate compact](https://en.wikipedia.org/wiki/Interstate_compact)** > > In the United States, an interstate compact is a pact or agreement between two or more states, or between states and any foreign sub-national government. > Most early interstate compacts resolved boundary disputes, but since the early 20th century, compacts have increasingly been used as a tool of state cooperation and mutual recognition on infrastructure, services and professional licensing, often to ease administrative barriers and reduce costs and litigation. In some cases, an agreement will c... ---
**Author:** ![OriginalGangster](https://avatars.discourse-cdn.com/v4/letter/o/ea5d25/32.png) [@OriginalGangster](https://boards.straightdope.com/u/OriginalGangster)\ **Post date:** [November 26, 2016, 10:11pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/48 "2016-11-26T22:11:08Z")
From a very alt-right forum: This recount business is worrying me. I am concerned they have some way or stealing the election. I couldn’t even go out last night or enjoy the holiday weekend because all I can think of is what if (expletive) ends up winning. Guys, please send me a PM. This is getting too stressful. ---
**Author:** ![OriginalGangster](https://avatars.discourse-cdn.com/v4/letter/o/ea5d25/32.png) [@OriginalGangster](https://boards.straightdope.com/u/OriginalGangster)\ **Post date:** [November 26, 2016, 10:13pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/49 "2016-11-26T22:13:31Z")
Next guy replies: Settle down guys. Breathe. Donald’s got this. He’s weathered more than this in the past year. There’s no need to worry about the attention-seeking antics of a post-menopausal cat lady. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [November 26, 2016, 10:25pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/50 "2016-11-26T22:25:47Z")
> [@OriginalGangster](#): > > From a very alt-right forum: > > This recount business is worrying me. > > I am concerned they have some way or stealing the election. > > I couldn’t even go out last night or enjoy the holiday weekend because all I can think of is what if (expletive) ends up winning. > > Guys, please send me a PM. This is getting too stressful. Delicate little flower, isn’t he? ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [November 27, 2016, 2:01am UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/51 "2016-11-27T02:01:50Z")
> [@WillFarnaby](#): > > Interesting wrinkle: Such a compact would be unconstitutional without the consent of Congress. > > “In the United States of America, an interstate compact is an agreement between two or more states. Article I, Section 10 of the United States Constitution provides that “No State shall, without the Consent of Congress… enter into any Agreement or Compact with another State.”” > > [Interstate compact - Wikipedia](https://en.m.wikipedia.org/wiki/Interstate_compact) [FWIW.](https://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact#Legality) > [@](#): > > It is possible that Congress would have to approve the NPVIC before it could go into effect. Article I, Section 10 of the US Constitution states that: “No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State, or with a foreign Power.” However, the U.S. Supreme Court has ruled in Virginia v. Tennessee, 148 U.S. 503 (1893), and in several more recent cases, that such consent is not necessary except where a compact encroaches on federal supremacy.[47] Every Vote Equal argues that the compact could never encroach upon federal power since the Constitution explicitly gives the power of casting electoral votes to the states, not the federal government. Derek Muller argues that the NPVIC would nonetheless affect the federal system in such a way that it would require Congressional approval,[48] ---
**Author:** ![Curious2016](https://avatars.discourse-cdn.com/v4/letter/c/b4bc9f/32.png) [@Curious2016](https://boards.straightdope.com/u/Curious2016)\ **Post date:** [November 27, 2016, 6:38pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/52 "2016-11-27T18:38:57Z")
> [@DSeid](#): > > (Not my hypothetical; the op’s.) > > Except that doing that would not be constitutionally valid. Their job is to tally the electors votes. There is no option to refuse to certify valid electoral votes or to fallaciously declare the votes to be invalid. Doing thus would be a Congressional _coup_, overthrowing the results as determined by the rules of the constitution in order to install their choice. > > Is it your belief that a GOP dominate Congress would overthrow a constitutionally valid result because it did go the way they preferred or because they thought that the rules of the constitution were unfair? > > I’d expect that Chief Justice Roberts would refuse to administer the oath of office under that circumstance. The rules of the Constitution are silent on this. Congress has used its 12th Amendment power to “count” votes to pass the Electoral Count Act, which says Congress can object to irregular votes. There’s no consistent argument that says the electors can perform a coup but congress is powerless to stop them. The electors and Congress each has as strong (or as weak) of a constitutional claim as the other. Sent from my iPad using Tapatalk ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [November 27, 2016, 9:47pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/53 "2016-11-27T21:47:22Z")
> [@Curious2016](#): > > The rules of the Constitution are silent on this. Congress has used its 12th Amendment power to “count” votes to pass the Electoral Count Act, which says Congress can object to irregular votes. It’s kind of a stretch to view electoral votes for Hillary Clinton as “irregular”, assuming she’s still alive on December 19th and no evidence has come forward to suggest she’s under 35, was not born a U.S. citizen, or has been twice elected president before. ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [November 27, 2016, 10:09pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/54 "2016-11-27T22:09:04Z")
It’s also more than a stretch to call the Electoral College doing that which is completely consistent with the Constitution as “a coup.” Yes members of Congress can object to the validity of any electoral votes (signed by at least one House and one Senate member). The Constitution is not silent on this. [Section 15](https://www.archives.gov/federal-register/electoral-college/provisions.html#15) delineates what the grounds for rejection may and may not be. > [@](#): > > … no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified. … Their job is clearly not to approve the choice made by the elector. The basis of a successful objection leading to rejection of the vote can only be that the vote was not that of the legally chosen Elector of the state. Now IANAL but even to me that seems pretty straightforward. The Constitution allows the Electoral College to choose whoever they want to if 270 of them agree to the choice and such a choice is allowed by each of their states or district. It does not allow Congress to reject the votes of legally chosen electors, one per elector. ---
**Author:** ![Curious2016](https://avatars.discourse-cdn.com/v4/letter/c/b4bc9f/32.png) [@Curious2016](https://boards.straightdope.com/u/Curious2016)\ **Post date:** [November 27, 2016, 10:15pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/55 "2016-11-27T22:15:23Z")
> [@Bryan\_Ekers](#): > > It’s kind of a stretch to view electoral votes for Hillary Clinton as “irregular”, assuming she’s still alive on December 19th and no evidence has come forward to suggest she’s under 35, was not born a U.S. citizen, or has been twice elected president before. those are in fact the only eligibility requirements in the constitution. The constitution doesn’t say anything about having won the popular vote. If so, doesn’t that take all of the air out of the faithless elector campaign, which is hollering that Trump lacks “the requisite qualifications”? Anyway, the point isn’t whether you or I think it’s a stretch. It’s up to Congress. Somehow I don’t think Ryan or McConnell will care one whit about the clamors of those who became constitutional scholars all of 3 weeks ago. ---
**Author:** ![MedellinMike](https://avatars.discourse-cdn.com/v4/letter/m/c6cbf5/32.png) [@MedellinMike](https://boards.straightdope.com/u/MedellinMike)\ **Post date:** [November 27, 2016, 10:32pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/56 "2016-11-27T22:32:17Z")
I can’t imagine Clinton wanting to take office under such circumstances. I would think the Clinton and Trump camps would come together to negotiate in the time after the electoral vote and before Congress certifies it. Clinton would concede and Congress would certify the Trump/Pence administration. The concession Clinton and the Democrats would get is the promise to eliminate the electoral college. And after the mess of this hypothetical, I would think that both sides night agree. ---
**Author:** ![DSeid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dseid/32/20194_2.png) [@DSeid](https://boards.straightdope.com/u/DSeid)\ **Post date:** [November 27, 2016, 10:56pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/57 "2016-11-27T22:56:24Z")
> [@Curious2016](#): > > Anyway, the point isn’t whether you or I think it’s a stretch. It’s up to Congress. Somehow I don’t think Ryan or McConnell will care one whit about the clamors of those who became constitutional scholars all of 3 weeks ago. No, it would not be up to Congress, any more than Obama can unilaterally decide to stay on. The Supreme Court would be the check and if Congress did such in conflict with their powers under that document then the Chief Justice would refuse to administer the oath of office to their extralegal choice. The rules may be stupid but they are the rules. The rules are that the President is not elected by a popular vote but by a majority of the votes of the Electoral College. The Electors’ votes are constrained by the laws of their states and if their states officially place no binding constraints on their votes then they can vote however they please. If they are the legal electors of their states and they are voting just once then those votes must be tallied by Congress. Members of Congress can challenge the legal standing of an elector if the vote is from someone other than the legally chosen individual. But if from the legally valid elector they must tally it. Hence “faithless electors’” votes have been counted in the past and would be in the future so long as state laws did not prohibit it and the elector was legally selected, no matter how many of them there may be. It’s not even like such would be circumventing the intent of the law … such _was_ the intent. Agreed the process is archaic and undemocratic but the rules would apply to massive “faithless electoral” voting as much as it does to the popular vote winner losing the election. ---
**Author:** ![Curious2016](https://avatars.discourse-cdn.com/v4/letter/c/b4bc9f/32.png) [@Curious2016](https://boards.straightdope.com/u/Curious2016)\ **Post date:** [November 27, 2016, 11:07pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/58 "2016-11-27T23:07:11Z")
> [@DSeid](#): > > It’s also more than a stretch to call the Electoral College doing that which is completely consistent with the Constitution as “a coup.” > > Yes members of Congress can object to the validity of any electoral votes (signed by at least one House and one Senate member). The Constitution is not silent on this. [Section 15](https://www.archives.gov/federal-register/electoral-college/provisions.html#15) delineates what the grounds for rejection may and may not be. Their job is clearly not to approve the choice made by the elector. The basis of a successful objection leading to rejection of the vote can only be that the vote was not that of the legally chosen Elector of the state. > > Now IANAL but even to me that seems pretty straightforward. The Constitution allows the Electoral College to choose whoever they want to if 270 of them agree to the choice and such a choice is allowed by each of their states or district. It does not allow Congress to reject the votes of legally chosen electors, one per elector. There’s nothing clear about what the Constitution allows or does not allow electors or Congress to do. FYI Congress (incl then-Reps GHWB & Gerald Ford) tried to reject a Nixon elector’s faithless vote but half-assed it bc there was only 1 faithless vote, and Nixon had 120+ EVs to spare in 68. If an unprecedented 37 switch this year to install HRC, do you really think Ryan & McConnell will throw up their hands and go “welp, we just read the bare-bones Constitution, and it’s crystal clear we’re utterly impotent to stop this.” You first called Congress’s overriding faithless electors a “coup.” I’m saying neither faithless electors nor Congress would be guilty of a coup more than the other. Either both are merely rubber stamps or neither is. There’s no principled reason to say electors can run wild but Congress can’t do anything to stop it. And parsing 3 USC 15’s text just says that Congress can’t reject “regularly given” votes by electors who are certified by the state’s Gov/SoS _by alleging that they were not actually certified by the Gov/SoS._ It still leaves it up to Congress to interpret “regularly given.” The 1969 Congress (incl GHWB & Ford) read it to encompass faithless votes. Lastly, if 37+ electors go faithless, a GOP-controlled state’s legislature/Gov/SoS can simply refuse to send in the original slate that contains 1+ faithless votes OR send in a 2nd slate of completely faithful votes. At that point, it’s still up to Congress to decide which of the 2 competing slates to accept. Eg Florida’s GOP state legislature thought about sending their own 25 electors in 2000. Since Art II gives state legislatures plenary authority to decide how electors are chosen, there’s no constitutional basis for forcing Congress to certify the faithless slate instead of the completely faithful one. Last I checked, the GOP controls 33/50 states. ---
**Author:** ![Curious2016](https://avatars.discourse-cdn.com/v4/letter/c/b4bc9f/32.png) [@Curious2016](https://boards.straightdope.com/u/Curious2016)\ **Post date:** [November 27, 2016, 11:23pm UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/59 "2016-11-27T23:23:14Z")
> [@DSeid](#): > > No, it would not be up to Congress, any more than Obama can unilaterally decide to stay on. The Supreme Court would be the check and if Congress did such in conflict with their powers under that document then the Chief Justice would refuse to administer the oath of office to their extralegal choice. > > The rules may be stupid but they are the rules. The rules are that the President is not elected by a popular vote but by a majority of the votes of the Electoral College. The Electors’ votes are constrained by the laws of their states and if their states officially place no binding constraints on their votes then they can vote however they please. If they are the legal electors of their states and they are voting just once then those votes must be tallied by Congress. The constitution gives no role whatsoever to the sitting POTUS in choosing the next one. But the 12th Am does give Congress a role, and, as mentioned above, the Constitution’s text doesn’t confine Congress’s function to mere rubber stamping any more than the Constitution’s text instructs electors to be mere rubber stamps. Subsequent tradition & practice have shown that the EC & Congress’s roles are now ceremonial. But there’s nothing in the Constitution’s text itself that dictates this. One unprecedented action (EC goes faithless) _will_ invite another. Neither is settled as “clear” because neither has happened ever. But you’re kidding yourself if you think Ryan & McConnell “must” do no more than tally the faithless electors, or that one person (CJ Roberts) can prevent anything by simply refusing to administer the oath. Article II doesnt even say that it has to be the CJ who administers the oath. That’s just the tradition, a theme that should be clear to you by now. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [November 28, 2016, 12:26am UTC](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973/60 "2016-11-28T00:26:04Z")
> [@WillFarnaby](#): > > Interesting wrinkle: Such a compact would be unconstitutional without the consent of Congress. > > “In the United States of America, an interstate compact is an agreement between two or more states. Article I, Section 10 of the United States Constitution provides that “No State shall, without the Consent of Congress… enter into any Agreement or Compact with another State.”” > > [Interstate compact - Wikipedia](https://en.m.wikipedia.org/wiki/Interstate_compact) In a situation where states with at least 270 EVs had ratified the compact, th more likely problem I see is whether the states voting the other way would honor it or renege, the next time the popular and electoral vote results differed. Because that’s exactly the effect of the compact: some states that gave a majority of their votes to the EC winner would have to select the popular vote winner’s slate of electors. I would expect some emergency meetings of the state legislatures in question. [Previous page](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973.md?page=2) [Next page](https://boards.straightdope.com/t/hypothetical-the-electoral-college-overturns-election-says-clinton-won/772973.md?page=4)