Electors Should Give Choice to the House

The New York Times has an explainer up to help you understand how the Electoral College works and what to expect. It’s really rather inadequate, but it does get the basics correct.

On Monday, 538 people will meet to determine who will be the next president.

These meetings of the Electoral College, convened in every state and the District of Columbia just shy of six weeks after Election Day, have long been little more than a formality.

The important thing here is that the College does not meet as a body. That’s intentional and it’s supposed to make it harder to bribe the Electors. Rather than convening in one place, the College convenes in each of the fifty states and in the District of Columbia.

The Electors are pledged to vote for either Hillary Clinton or Donald Trump, but they are basically free to cast their votes for anyone. Some states have laws that allow Electors to be fined if they break their pledge, or even for them to be replaced for doing so, but those laws are of dubious constitutionality, to say the least. If an Elector were to challenge their fine or their replacement in court, they would almost assuredly win (and Michael Moore has agreed to pay their fine). This is because the record is clear in both the minutes of the Constitutional Convention and in the writings of the Federalist papers that the Electors were supposed to exercise their own judgment.

Once the vote is tallied in each state, there’s a formal process.

They will then prepare what is called a “certificate of vote” with the results, which is then mailed or delivered via courier to the National Archives, where it becomes part of the nation’s official records, and to Congress…

…On Friday, Jan. 6, at 1 p.m., members of the House and Senate will meet in the House chamber to count those votes. Vice President Joseph R. Biden Jr., as the departing president of the Senate, is expected to preside over the count, during which every state’s vote is opened and announced in alphabetical order.

Mr. Biden will then declare the winner based on who has the majority of votes — at least 270.

I’m sure that there will be leaks and rumors about any “faithless” Electors who violate their pledge, but we won’t have an official count until the envelopes are opened on January 6th. If there are a substantial number of defectors, we may have a period of uncertainty about whether Trump actually has a majority, although that seems far-fetched at the moment.

There’s also a process for Congress to challenge Electors.

At that point, Mr. Biden will ask if there are any objections, and lawmakers can then challenge either individual electoral votes or state results as a whole. If an elector has chosen to vote against state results, that is the moment when lawmakers can petition to throw that vote out.

Objections must be in writing and signed by at least one member of the House and one member of the Senate. If there are any objections, the House and Senate then immediately split up to consider them and have just two hours to decide whether they support the objection or not.

Both chambers will then reconvene and share their decisions; if both the House and the Senate agree with the objection, then they will throw out the votes in question. But Congress has never sustained an objection to an electoral vote in modern times.

After any and all objections have been resolved, the results are considered final. The next step is to swear in the winner on Jan. 20.

If, against all expectations, Trump does not receive a majority, then there is another elaborate process that the New York Times does not bother to explain.

The Twelfth Amendment requires the House of Representatives to immediately go into session to vote for a president if no candidate for president receives a majority of the electoral votes (since 1964, 270 of the 538 electoral votes).

In this event, the House of Representatives is limited to choosing from among the three candidates who received the most electoral votes for president. Each state delegation votes en bloc – each delegation having a single vote; the District of Columbia does not receive a vote. A candidate must receive an absolute majority of state delegation votes (i.e., at present, a minimum of 26 votes) in order for that candidate to become the President-elect. Additionally, delegations from at least two-thirds of all the states must be present for voting to take place. The House continues balloting until it elects a president.

The House of Representatives has chosen the president only twice: in 1801 under Article II, Section 1, Clause 3 and in 1825 under the Twelfth Amendment.

There is a nearly identical process in place for a contingency in which the vice-president does not get a majority from the Electors, but it takes place in the Senate.

Because there are Republican majorities in each chamber of Congress, and because more states have a majority of Republicans in their congressional delegations than have a majority of Democrats, there is no realistic way for Hillary Clinton to prevail. (As far as I can tell, Maine is currently the only state with an even partisan split in their House delegation). Faithless Electors can be challenged, and any vote of the House would favor a Republican. Since the House is constitutionally precluded from picking anyone who didn’t get any electoral votes, the only alternatives they’ll have to Trump are Clinton and whoever came in third place. If, say, a bloc of the Faithless Electors voted for Mike Pence or Paul Ryan or someone else, they might become the focal point for a revolt against Trump, but surely the Republicans would not choose Clinton despite the fact that she carried the popular vote by nearly three million votes.

I could see a scenario in which, by the time January 6th arrives, the idea of a Trump presidency is such a self-evidently bad idea even to the majority of House Republicans, that they could be convinced to elect Mike Pence or even Paul Ryan in his stead, and that’s really the best reason for Republican members of the Electoral College to act in a faithless way today. With all the uncertainty around Russian interference in the election (a report on which is being prepared by the Intelligence Community and which Congress will investigate in the next term), as well as all the strange concerning behavior of Trump vis-a-vis enemies and allies alike, the Russian connections of several of his key appointments, and the questions surrounding Trump’s intentions to violate the Emoluments Clause of the Constitution, it would be prudent to give the House the option to choose someone other than Trump.

In the vote today, the Electors can influence who the third place winner will be, and therefore they are responsible for providing the (only) alternative to Trump that would be plausibly acceptable to Republicans. That’s a weighty responsibility, and it’s something they should take seriously.

If there aren’t enough faithless Electors to deny Trump a majority, there will be no remedy available on January 6th.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.