Let’s assume the lunatic “Hamilton Electors” who think Article II gives them unfettered discretion to have an enlightened debate before casting votes for Mr. Rogers.
The Electoral Count Act (ECA) provides that, on Jan 6, 2017, the newly seated Congress will certify the electoral college’s votes. All it takes is 1 Rep + 1 Sen to object to a faithless vote as “not regularly given,” and it then goes to each chamber to vote on what to do with the objection.
This happened in 1969, when an NC elector pledged to Nixon went faithless. Each chamber then debated it, and then-Representatives Gerald Ford & GHW Bush voted to correct the vote to Nixon. The objection failed (but not by a blowout margin), most likely because Nixon’s EC winning margin was so large that losing 1 faithless elector didn’t matter.
But if enough electors go faithless to award the Presidency to HRC, I have trouble seeing either GOP-dominated chamber taking the mass faithlessness lying down.
Some academics have questioned the constitutionality of the ECA:
It’s hard to take seriously his argument that “but they swore to support the Constitution!” If it came down to it, does anyone really see either GOP-controlled chamber going “welp, I guess Art. II really does allow 25yo polisci grad students whom nobody voted for to do whatever they want, and there’s nothing Congress can do about it. Guess Bush, Ford, & VP Gore were fools to rely on the ECA.”
Even if there are 37 faithless Republican electors it’s very unlikely they would write in Hillary instead. And, as you say, Congress would see to it that Trump was made President anyway. The whole thing is an exercise in futility, although if there were enough faithless electors, while not affecting who was President, it might put the Electoral College itself in question and stimulate debate about the whole electoral process.
A (Republican) person on my Facebook feed is part of a movement urging electors to vote for Mitt Romney instead of Trump, rather than vote for Trump or even Clinton. Per their theory, this would (presumably) be more palatable to (presumably) conservative electors, and - if the end result was that no candidate got to 270 - Congress would then have the option to seat President Romney instead of President Trump. Obviously it will never happen, but it’s a more interesting intellectual exercise than imagining that these folks will make Secretary Clinton president.
It is unlikely in the extreme that you could get a bunch of Trump electors to vote for Hillary. It is more likely that you could get them to vote for another Republican if Hillary electors “led the way”.
Well if we’re just comparing Romney to Trump, then yes, Romney is probably a more palatable option. But remember Ryan thanked Trump for the results he delivered–not only did he not drag any GOP congressmen down, he flipped PA/MI/WI for the first time in 30yrs. Trump made a bunch of 2x Obama voters vote GOP. And the Ryan establishment wing of the GOP has always been wary of pissing off the hardliner wing of the GOP who threw out Boehner & voted for Trump.
Anyway, assuming that weird things happen to trigger the ECA, what do people here think of the ECA, the GOP-controlled Congress’s role under the ECA, and the ECA’s constitutionality?
Trump being seated through a triggering of the ECA would if anything make him propose an amendment to bind future electors or even, if peeved enough, for the popular vote (“I don’t care, I’ve already been POTUS, see how you like it, Republicans”)
It will never happen, but picturing Trump’s meltdown after the EC threw the election to Mitt Romney would be insanely entertaining. Completely worth a constitutional crisis and the attendant rioting.
Given a choice between Romney or Trump, I’d expect a large majority of the American people would pick Romney. He’s better aligned with the traditional Republicans, while being by far the “lesser evil” for the Democrats.
But, anyone who’s thinking this could actually happen is kidding themselves.
Well what if they actually flip 37 to HRC, not another Repub? I know it’s a pipe dream, but say that happened and HRC has 270 EC because of 37 faithless voters. Can the GOP Congress refuse to certify the faithless votes, or will Federalist #68 (“EC electors can vote in Daffy Duck if they want”) prevail in the courts and say “lol, nope, sorry GOP Congress you’ll just have to accept HRC.”
I think any faithless electors on the Republican side would be likely to vote for Mike Pence in the top slot. Also we won’t see more than handful (2-3 max); certainly not enough to throw the election to Congress.
The more realistic question is the probability of any Trump electors not voting for Trump. Is that greater or less than 1% chance, say? The chance of 37 is zero. This isn’t quite like even the GOP convention, where Trump’s underdeveloped organization resulted in lots of Cruz etc people being named Trump delegates to the convention. Trump’s org never fully caught up to normal levels but far fewer of the Trump electors are other than Trump people.
And even 37 by the admission of the Clinton electors trying to lobby for this is just to reduce the credibility of the Electoral College, since the House would virtually certainly vote for Trump if he were denied 270 EV’s but nobody else got there, which they wouldn’t except in the total fantasy scenario of Trump electors voting for Clinton. Undermine the EC so it can be changed to a system more likely to favor the Democrats in the current political alignment, no sorry, ‘to insure the true will of the people is heard’. In a left leaning bubble/echo-chamber I guess it might seem a significant non-zero probability any GOP elector would play along, but I doubt it.
Best chance is to get a few faithless electors as a way of eroding public confidence in the Electoral College so that eventually it can be removed. That will be slow. Trump claims he isn’t a fan of the Electoral College either, so if that is to be believed (big if), Democrats could work with him starting Jan 2017 to get rid of it.
No, I don’t want any electors to break the pledge. I’m asking, on the infinitesimal chance it happens, can Congress stop it by objecting under the Electoral Count Act (ECA), or is the ECA itself an unconstitutional impediment to the absolute discretion these “Hamilton Electors” say they have?
I agree that there’s just about a 0% chance of an HRC Presidency. I don’t think any GOP electors should go faithless. I’m interested in how the Electoral Count Act (ECA) dispute would be resolved.
It falls to Congress in 1 of 2 ways:
If enough GOP electors defect so that no one has 270, the House decides under the 12th Amendment.
But if 37 or more GOP electors defect to push HRC over 270, Congress’s role wouldn’t be defined by the 12th Amendment but by the ECA. Under the ECA, 1 Sen + 1 Rep objects, and it’s enough to throw it into a vote by each chamber. Since the GOP control both chambers, they could decertify any faithless votes.
BUT some people are saying the ECA, which gives Congress the right to object to votes “not regularly given,” might itself be unconstitutional because the EC electors’ discretion is absolute under ArticleII and so cannot be overriden by Congress pursuant to the ECA.
I personally think the “Hamilton Electors” are delusional in thinking that 21st century democracy wants 538 people to exercise their free will to the neglect of the 120million+ who voted.
ArticleII’s silence on a topic (faithless electors) doesn’t mean electors are free to roam free and do as they wish. Nor does ArticleII disable Congress from passing something like the ECA.
But it is true that the ECA has never been tested by mass faithlessness yet, which is why I’m wondering what people here think about the ECA.