What Will the Electors Do on Monday?

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The CIA’s assessment this month that the Russian government purposely helped the election of Donald Trump prompted increased speculation that some Electoral College members representing states where Trump won might not cast their ballots for the president-elect on Dec. 19. But while it’s possible a handful of “faithless electors” might side with someone else, the idea the Electoral College will prevent a Trump presidency is “magical thinking,” Fordham Law School Professor Jed Shugerman said.

Trump’s projected 306 electoral votes means 37 electors would need to switch their votes to stop the president-elect from receiving the mandatory 270, and thus bring the vote before the House of Representatives. No public evidence exists that this will happen. Only one Republican voter, Christopher Suprun from Texas, has publicly announced he would not support Trump.

“If there were a strong effort to change the result of the election, then hundreds of electors from all around the county would have needed to have been coordinating for weeks to agree on a single alternative,” Shugerman said. “There is no single meeting of the Electoral College, because they vote separately at each state capitol, so if they haven’t agreed before now, they aren’t going to suddenly agree before Monday.”

In the extremely unlikely event enough electors spoiled their votes to prevent Trump—or anyone else—from reaching 270 electoral votes, the exercise would be futile. The House would then, in turn, vote Trump president, Shugerman wrote this week on his blog.

“It’s great if some electors vote their conscience,” Shugerman said, expressing his belief that Russia’s influence on Trump’s win is “unacceptable.” “But it’s magical thinking to believe the Electoral College would choose someone other than Donald Trump.”

Shugerman’s reasons include the following:

History. Only twice has the House of Representatives selected the president—Thomas Jefferson in 1800 and John Quincy Adams in 1824—and these two circumstances were very different from 2016. Also, “faithless electors” are extremely rare. Only 82 electoral votes have been changed on account of personal initiative, according to the non-partisan, nonprofit FairVote.

GOP alternatives. Trump’s last-standing rivals for the Republican presidential nomination—Texas Senator Ted Cruz, and Kasich—received around 25 and 14 percent of GOP primary votes, respectively. Thus, Shugerman called it “implausible” that various factions of the Republican party, such as Christian fundamentalists and deficit hawks, would suddenly agree on someone besides Trump.

Russia = old news. Questions about Russia’s meddling in the election first emerged around the time of the Democratic National Convention in July. At the same time Trump’s then-campaign manager Paul Manafort’s business ties with pro-Russia Ukrainian oligarchs were exposed. Clinton emphasized in the debates that the U.S. intelligence agencies concluded that Russian operatives were intervening to help elect Trump. If there were concrete evidence Trump was assisting Russian espionage, that would be quite a different matter; however, if these developments didn’t give Republican congressional leaders or voters pause it would be “outlandish” to expect the party to reject Trump based on concerns over Russia, now that he has won the election, Shugerman said.

Electoral College voters. Most of the people voting on Dec. 19 are mid-level party officials or state elected officials who hope to move up the party ladder, and thus will not vote against the GOP’s nominee. Even when some electors have decided they could not vote for Trump, they did not lead the fight for an alternative. They simply resigned to let someone else vote for Trump. “Those resignations were cowardice,” Shugerman said, noting neither elector faced a criminal or civil penalty in their state for an opposition vote.

What’s Next for the Electoral College?

The Electoral College arose in 1787 at a time when no precedent existed to select a president, Shugerman noted. At the time there was no concept of a nationwide majority vote, since each state placed its own unique restrictions on who could vote. However, the three-fifths compromise that recognized slaves as three-fifths of a person provided southern states added power in the House and Electoral College.

Smaller states continue to enjoy outsized influence over the Electoral College, as most states employ a winner-take-all approach with their votes. Shugerman agrees with Harvard Law Professor Lawrence Lessig’s argument that winner-take-all, as a creation of state governments, violates Equal Protection rights established by the Supreme Court in Reynolds v. Sims.

While neither protest electoral votes nor legal arguments about Equal Protection change the election’s results, the ongoing debate over the Electoral College clarifies that, for better or for worse, it’s not a robotic institution but rather a deliberative system that remains independent, Shugerman said.

Still, it doesn’t always represent the people’s will. For the second time in five presidential elections, the incoming president will have lost the popular vote. Trump’s Democratic opponent Hillary Clinton won the popular vote by 2.8 million votes, according to The Cook Political Report.

Since 1966, Fordham Law School Professor John Feerick has advocated for a constitutional amendment that would abolish the Electoral College in favor of a nationwide popular vote. Feerick renewed his call during an Oct. 26 program at Fordham Law School titled “The Electoral College on the Eve of Election 2016.”

“The use of electors, as I see it, has not fulfilled the design of the Founding Fathers and has become, unfortunately as I noted before the election, nothing more than a counting device,” Feerick said this month. “As for the current movement of electors not voting as intended by the people who selected them, I do not favor it, but I remain steadfast in my view that the president should be selected by a new constitutional system based on the popular vote and that the majority vote winner should be the winner, as happens in elections for all other major offices.”

The National Popular Vote Interstate Compact would provide an improvement over the Electoral College, Shugerman said, but it is unlikely to receive approval anytime soon from states totaling 270 electoral votes. At present, a collection of 10 states and the District of Columbia possessing 165 votes have signed the compact to give all their votes to the national popular vote winner. The signers are mostly Democrat-leaning states. There’s no incentive for small Republican states to yield their disproportionate electoral impact nor is there incentive for larger states, such as Texas, that are trending toward becoming battleground states to sign onto the compact, Shugerman said.

Even if the compact reached 270 voters it would face another hurdle in a scenario where a Republican was assured a Democratic state or vice versa.

“The national compact runs into a problem precisely because electors can defect and vote their conscience,” Shugerman explained. “What if the Electoral College vote under the compact is close? Let’s say California, a state in the compact, votes two-to-one for the Democrat, but a Republican wins the national vote. Those electors will be tempted to vote for the Democrat based on state politics, regardless of the compact. Similarly, a red state in the compact, perhaps Alabama, could vote two-to-one for the Republican, so even if a Democrat won the national majority, the Alabama electors, even if chosen by the Democratic Party, could be tempted to vote for the Republican. The fix would have to be making the electoral votes automatic by law or making stronger penalties for defecting.”

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