This is purely a hypothetical. Electoral college delegates have voted in a way contrary to the people of their states before, but it has never been enough of them at once to change the winner of the election. What would happen if enough of them did it to change the winner?
The election would be 100 percent legal, but there would be outrage and a sense that the president isn’t legitimate. Whether the president succeeds at anything would depend on the composition of congress.
And quite possibly, (I guess,) that outrage might be enough to drive some kind of Electoral college reform movement.
I think the simple reality is that the election of the person chosen by the Electoral College would be legally binding. I can maybe imagine the Supreme Court somehow saying that “faithless elector laws” (which I do not believe have ever really been investigated as being constitutional or not) are a valid mechanism of State policy and that the faithless elector (presuming they were from a state with such a law) was bound to vote as the State had commanded. But frankly that’d be immense judicial activism. Legally it’d be simply saying “we care nothing for the plain wording of the constitution, how the electoral college has worked since 1788/89 and are going to judicially correct behavior t hat we dislike.”
This is a “far out there” scenario but not that far out there. I think if we ever have a 269-269 tie, which is certainly a possible outcome of the election or even a 270-268 outcome then there will be “some level” of consideration by at least some of the electors along the lines of “wow, I could legitimately change the outcome of this election.” Now, the first part of this isn’t even that far-fetched, we’ve had several elections that were close enough historically: in 1800 Burr and Jefferson tied at 73/73 (a consequence of the asinine and convoluted way the EC voted prior to the 12th Amendment), and in 1876 Hayes beat Tilden by 185-184. Now, considering the large amount of corruption involved in the 1876 election and the certification of electors and state results it’s questionable if an elector didn’t feel the need to “do something” then if they ever would. But still, it’s not impossible. [FWIW Tilden almost certainly won over Hayes, after all States had initially reported results Tilden had won a commanding popular vote win and was up 184-165 in the Electoral College, but 20 votes were still outstanding because states had contested outcomes, and one elector was actually declared ineligible. In controversial processes that you could write a book about all of the disputed votes were given to Hayes, and he won the EC 185-184.]
The historical example, although the nearest dating back well over 125 years now, is that however controversial/corrupt, the certified results of the electors is what holds, even if it is quite different from what probably should happen, even if it goes against the popular will or even the popular votes in several states.
The obvious thought is that this could happen one time, a guy would get into the White House without a traditional mandate and even he himself would almost certainly be part of a movement to pass an amendment altering the electoral college so this could never happen again–in fact I imagine he’d need to be the champion of such an amendment to show that he disagreed with the system despite benefiting from it.
I suppose there’s also a small, idealistic chance maybe a candidate who won this way would decline the office–and would say that they wouldn’t accept the White House against the will of the voters. This situation would be different than the guys who lost the popular vote but legitimately won the EC, as this person would’ve “lost” the EC based on the State by State popular vote results but “won” in the actual EC voting based on a faithless elector.
By default what would happen if for any reason the President-Elect cannot fulfill the office (in this case he refuses to), the 20th Amendment provides that on inauguration day the Vice President Elect just moves up one spot, gets to take the oath of office and he becomes the real President. So for a candidate to “decline” to benefit from a faithless elector, still doesn’t just swing it to the runner up. If both the Pres-Elect and Veep-Elect agree to not take the oath of office we end up in a constitutional crisis. The 20th Amendment provides that if both cannot assume the office, then Congress can create by statute a process for determining who should fill the office. The Constitution is vague on this point, and deliberately leaves it to Congress to fill in the details. I don’t believe Congress ever has. But it could be anything from providing for a process by which a Presidential “Special Election” could be held, to something saying the new Speaker of the House just “becomes” President, or really almost anything. If the Congress was Amenable in this situation they could hastily pass a law that just says if both Pres-Elect and Veep-Elect cannot fill the office, it goes to the runner up in the Electoral College, thus giving it finally back to the “rightful” winner. But to arrive there requires a lot of “ifs” including two most likely very partisan and egotistical politicians (the Pres-Elect and Veep-Elect) to step aside, and posits a Congress that is probably controlled by the party of the runner up and thus amenable to crafting a law to give the White House to him in said scenario.
I think the far more likely outcome is the beneficiary of the Faithless Elector says some nonsense about “not agreeing with the process, but we are a society of laws bound by the Constitution, and the Founders have empowered the electors to make a choice–so while I dislike the circumstances, I am duty bound to take the oath of office in January.” I even suspect that while there’d be “noise” about a constitutional amendment to prevent this in the future, history suggests it likely wouldn’t result in one actually passing. If the insanely corrupt election of 1876 didn’t spur reform I’m not sure this would, either.
The President the college elects is actually elected, and the Constitution gets changed pretty darn quickly. Probably to something along the lines of electoral votes being allocated without actually having electors cast them.
On a non-political note, I think such a faithless elector who singlehandedly changed the election outcome would face death threats for the rest of his or her life.
I would certainly hope we’d just go a popular vote than to allocating all the electoral votes to the winner of each state. I really can’t imagine the population as a whole wouldn’t prefer that. What I’m not sure about is could we get 3/4 of the states to approve.
Ah, but I think there’s an “it depends” situation. Given that Gore won the popular vote and probably deserved to win the electoral vote(since Buchanan won 10K votes in Palm Beach that were almost certainly intended to be Gore votes), would it really have been that much of a scandal had a couple of electoral college voters switched their votes to Gore?
Small states wouldn’t go for it and there are other complications that you’d have to worry about with a national popular vote, the biggest two being:
-
Difference in eligibility in states means that states with loose laws will cast more votes as a proportion of their population than states with tighter eligibility laws. It won’t be apples to apples. The electoral vote means that each state can set their own rules and regardless of turnout, their proportion of the vote stays the same.
-
You’d have to create a better recount provision than just “do a national recount”. We’d be best off just assuming a tie and having a tiebreaker rule of some sort if the election is within 0.5%. A national recount would be a nightmare. My preferred tiebreaker rule would be that incumbent party loses if it’s that close.
You would be leading the screams of protest, admit it.
I would not have protested at all if Gore had won the electoral college vote. I would protest if the electoral college overturned a legitimate election result.
Did you protest when the Supreme Court did it? I’m gonna guess No.
The Supreme Court simply declared that Florida’s recount was BS, which it was. They didn’t change the result of the election, they affirmed it.
So NO it is.
I should have made clear that you might exercise another popular option, of declaring the facts to be other than what they are so they’d fit your predictable position.
In order for the SCOTUS case to overturn an election result, the result would have had to be Gore winning. Bush won after the machine recount.
SCOTUS didn’t change the 2000 election outcome any more than a football referee who says “the ruling on the field stands” changes the play outcome.
Before SCOTUS heard the case, Bush was the victor; after SCOTUS heard the case; Bush was the victor.
It may have been improper for SCOTUS to interfere in a state court ruling, however wrong the state court might have been. But speaking strictly of overturning an election, as you point out, they did nothing of the sort. They simply stopped a second recount. Because apparently Florida was going to keep counting until they got it “right” if the Florida Supreme Court had their way.
That’s what we need right now, and switching to a national popular vote would be a big step towards fixing the problem. You’ve all seen those studies that say that the voters have “more power” under the Electoral College system? Well, that’s just because those studies use a very peculiar definition of “power”. What they actually say is that under the Electoral College system, there is a greater chance of the election being too close to call and needing recounts. Which, despite calling it “power”, is a bad thing.
You’re telling a guy who actually thinks a party needs to win by a certain minimum margin to change party control of the House.
So, you know.
Before all the votes were counted, Bush was the victor, after SCOTUS prevented all the votes from being counted out of a fear Bush would lose, he was the victor.
Glad to correct that for you.