It’s apparent now that despite winning the popular vote, Hillary Clinton lost the presidential election to Donald Trump.
Clinton received 47.7 percent of the popular vote. Trump received only 47.5 percent, according to CNN. But, because of the Electoral College system in place for presidential elections, Trump was declared the president-elect after reaching the necessary 270 electoral votes designated to various states. (You can read that explanation here.)
The Electoral College electors don’t cast their votes officially until Dec. 19 and technically don’t need to cast their votes according to their states’ alignments. These electors are called “faithless electors,” and before Election Day, at least four electors had already openly discussed changing their votes if their states voted a certain way. Flipped votes have accounted for only 1 percent (157 total) of all electoral votes cast in the history of the United States.
So, yes, it’s a long shot. And while no faithless elector has ever been prosecuted for flipping their votes, more than half of all states have laws binding their electors to the popular vote. Of the swing states, only three do not have these laws: Pennsylvania, New Hampshire and Iowa.
In 1836, electors from Virginia flipped their state by voting against the winner of the state’s popular election. For Clinton to take office, she would need this to happen in at least three swing states. According to FairVote, no elector has changed the outcome of an election by voting against their designated candidate.
If they were to succeed in doing so this year, however, it wouldn’t be as easy as simply casting a vote. The Constitution has some required checks before allowing any faithless elector to effect a change on the election results.
In the Twelfth Amendment—which I’m sure you’ve all read line by line, right?—the Constitution mandates that in the event of an Electoral College tie, the vote goes to Congress, with the House voting by state (one vote per state, no matter how many representatives it has) on the president and the Senate voting by senator (two for each state) on the vice president. The candidate with a simple majority (i.e. just more than the other guy) wins.
If, come Jan. 6, when Congress meets to officially count the electoral votes, the newly elected House and Senate determine that the Electoral College vote wasn’t legitimate, just one House or Senate member would have to object for the two chambers to make a final call on what to do about it. If they disagree, the Secretary of State in the individual states in which the faithless electors reside would determine what to do with their electors’ votes.
This is all very, very unlikely to happen, especially given the Republican control over the House and Senate—if it did come down to Congress to make the call over what to do with a flipped electoral vote for Clinton, it wouldn’t be at all likely for them to uphold a scenario that puts her in the Oval Office. But, as long as the Constitution and the Electoral College exist, it could be a possibility. Albeit, a very unlikely one.
@shelbielbostedt | sbostedt@redeyechicago.com
