Here’s how the Electoral College could prevent a Donald Trump presidency, even if he wins the popular vote
Even if Donald Trump wins the popular vote for President in November, it is entirely possible — and even Constitutionally acceptable — that we could be spared from his leadership.
For that, we can thank the Electoral College.
We take for granted every four years that the Electoral College will vote accordingly to the winners of each state’s popular vote.
But there is nothing in the Constitution, federal law or electoral history saying it has to be that way. The Electoral College has the freedom to override the people’s choice — in part, to expressly stop someone like Trump from taking over.
“Basically, the Electoral College is an anti-democratic measure built into the Constitution,” Andrew Trees, a post-doctoral fellow at Roosevelt University and author of “The Founding Fathers and the Politics of Character,” told the Daily News.
The Founding Fathers “didn’t want the people voting on thoughtless political impulse,” Trees said, calling the Electoral College “a cooling-off site” after the popular vote.
Trump, he added, “fits to a T” the kind of “unprincipled demagogue” the Fathers wanted to block.
With Trump’s sagging poll numbers, spiraling campaign, GOP infighting and pre-emptive excuses for defeat, he seems less likely every day to seize the White House.
But in a worst-case scenario, here’s how the Electoral College could save us from ourselves and tell Trump “You’re fired!” in advance.
Quick refresher on how this works
The Electoral College comprises 538 electors from the 50 states. The number of electors is determined by the number of senators and representatives for each state. The bare minimum of votes — seen in small states like Alaska and Wyoming, plus Washington, D.C. — is 3. California, with 55, has the most.
The Constitution says electors cannot be senators, representatives or anyone “holding an Office of Trust or Profit” in the federal government. Beyond that, electors can be… anyone. Most are members of local governments, or civilians with strong political ties, who are nominated by political parties.
If all goes according to plan, all of each state’s electors vote for the candidate who won the state’s popular vote. The only exceptions are Maine and Nebraska, which have a “district system,” with two electors voting for the state’s popular winner while the other electors cast one vote for each congressional district’s popular winner.
The candidate who wins the majority of these electoral votes — at least 270 — walks into the White House.
But here’s the fun part: It does not have to work this way at all.
The Constitution established the Electoral College, but doesn’t say squat about the sanctity of the popular vote.
Similarly, federal law doesn’t tell electors how they have to vote.
Each of the 538 electors, then, essentially has the right to vote however he or she pleases.
Washington D.C. and 26 states have laws binding electors to vote in accordance with the popular vote. But there is no precedent proving these laws have much power.
“These laws have never been tested in court,” said Alexander Keyssar, a Harvard history professor who is writing a book about the Electoral College.
“They have never been applied or challenged.”
In the other states, electors have unambiguous freedom to vote how they choose — with no consequence beyond breaking party loyalty. These rebels have historically been deemed “faithless electors.”
Electors could also, simply, cast a blank ballot.
With enough defectors, the Electoral College could either hand Hillary Clinton a victory, or deny both candidates the majority.
With no majority, the House of Representatives gets the final say, the Constitution says. The House would vote for the top three vote-getters from the Electoral College — which would presumably be Trump, Clinton and a popular third choice (say, Paul Ryan or Joe Biden or Michael Bloomberg).
Each state would then get one vote for those three candidates — and the winner of that vote wins the presidency.
The Senate would decide the vice president in a similar but separate vote.
What are the chances of this happening?
Historically, there is not much precedent for this.
Save for one occasion — in 1836 — there has never been more than one faithless elector in any election. Faithless, unpledged and blank voters have never made a significant mark on the College’s outcome.
There have been only four instances of a popular vote winner becoming an Electoral College loser — all for reasons that were wildly different, and not driven by a flip-flop coup:
•1824: The only time the traditional fall-back procedure came into play. In the contest between John Quincy Adams and Andrew Jackson, neither earned the majority of electoral votes; the House chose Adams.
•1876: Samuel Tilden beat Rutherford Hayes for the Electoral College majority, but 20 of those votes were disputed; after Democrats and Republicans struck a compromise over Reconstruction, those 20 votes went to Hayes.
•1888: Incumbent Grover Cleveland won reelection in a tight popular vote, but challenger Benjamin Harrison narrowly beat him in crucial swing states; the Electoral College vote went to Harrison.
•2000: Bush vs. Gore. Florida. Recounts. You remember. The only instance where both popular and Electoral College voting were overshadowed — the Supreme Court ultimately weighed in, putting Bush in power.
So, such College chaos is rare. But, lest we forget, this hasn’t exactly been your average presidential election.
Just this week, a Republican elector in Georgia, Baoky Vu, said he would refuse to vote for Trump as an elector — a highly unusual announcement, especially from a red state Republican four months before the College vote.
Vu later resigned after a GOP uproar. But, had he stayed, there would have been nothing stopping him from his anti-Trump insurgency — and there are still no legal roadblocks stopping any other elector from following Vu’s lead.
What would Trump do?
It’s hard to say for sure, because there is no history and there are no laws guiding what would follow an anti-Trump revolt.
Keyssar said Trump — especially being the “very litigious” guy he is — would likely slap “the mother of all lawsuits” on the turncoat electors, as well as their states. It’s unknown, though, if those suits would have any effect on the vote.
Trump would “certainly have grounds” to bring a suit, Trees said, but the electors would also have “good standing with the Constitution.”
Back before he clinched the GOP nomination, Trump vowed there would “riots” if he lost — which doesn’t speak well for how he and his violent supporters would handle a last-minute Electoral College rejection.
The Founder Fathers wanted this
The idea of the Electoral College vetoing the will of the people might sound like democratic disgrace.
But the Founding Fathers thought this system could save us from a bigger disgrace — as in, someone like Trump.
Remember, the systems of the Electoral College and checks and balances exist to halt someone who proclaims things like, “I alone can fix it.”
When supporting the Electoral College, the Founders feared the public being “too little informed of personal characters” and “liable to deceptions.”