Many Americans and people around the world are getting a civics lesson in the way we select the president of the United States — and the Electoral College is front and center.
While Donald Trump stunned most observers by winning enough states to give him an Electoral College victory, he is likely to lose the national popular vote by anywhere from 500,000 to over a million votes. This will represent the second Electoral College “misfire” in the past five elections and the sixth time the popular vote winner did not win in the Electoral College. Nearly 1 in 10 presidential elections have resulted in popular-electoral vote splits.
While that is concerning to a majority of Americans, the notion of a President Trump has instilled panic among his detractors. As a result, a movement has been afoot to mount an Electoral College insurrection to stop Trump.
Millions of Americans, including pop singers Lady Gaga, Pink, and Sia, have signed a petition to ask Republican electors to honor the popular vote and reject Trump. Although that is a long shot, it is worth examining whether these Electoral College lobbyists have an audience in the institution.
Having studied presidential electors in each of the past four elections, it is clear to me that most appreciate their ability to act as free agents, and many do mull their choices when they cast their ballots.
Efforts to game the institution are not without precedent and have happened with surprising frequency. The current effort to lobby the body has been foreshadowed for months running up to the election, with some arguing that electors should return to their role as wise politicos exercising their own judgment to save the Republic from someone his foes say is a demagogue.
The ‘faithless’ electors
My studies of presidential electors finds that most believe they should have the independence to vote as they wish and a surprisingly large number consider defecting. Those who do defect come to be known as “faithless” electors.
We have witnessed faithless electors in 9 of the last 17 presidential elections — the most recent being an elector in Minnesota who voted for John Edwards as both president and vice president in 2004. The vote was done in private, and no one owned up to the deed.
The state eventually passed a law requiring electors’ votes to be cast in public. Additionally, any faithless votes would be considered as a resignation of the office, the vote would be vacated, and the elector would be immediately replaced.
As was the case in Minnesota, most of the laws that punish faithless electors have been passed after a state experienced a faithless vote.
In my surveys of electors, I have found around 10% of electors serving in the past three election cycles considered voting contrary to expectations. This translates to about 50 electors in each of the past few presidential elections who consider casting faithless votes. Several electors in this election cycle, both Democrat and Republican, have publicly expressed reservations about their respective candidates. At least one Democrat elector flatly stated that he is not voting for Hillary Clinton. While it may not affect the outcome of the election, one faithless vote discounts hundreds of thousands of popular votes cast for a candidate.
My research finds that electors on the losing side are more likely to consider defecting, which does not bode well for those looking to oust Trump. For instance, nearly 1 in 5 Republican electors in 2008 considered casting faithless ballots. Those who do consider going rogue often do so because they are not fond of their party’s nominee.
Trump has angered many establishment Republicans throughout the campaign, and many of those same establishment Republicans will undoubtedly find their way to the Electoral College. Whether they have the fortitude to cast faithless votes en masse is unlikely.
With Trump winning a sizable Electoral College victory, we may see several wayward Republican electors cast symbolic votes for Vice President-elect Mike Pence or some other alternative Republican as their choice for president. This would allow them to gain some notoriety, vote with a clear conscience, and bring attention to their frustration with Trump serving as their party’s nominee.
Electoral College misfire
The current Electoral College misfire represents another way electors could affect the election. First, arguments for a national popular vote and the abolition of the Electoral College will certainly gain momentum. Democrat electors, in particular, could cast faithless votes to draw attention to this issue.
Second, and more consequential, if Trump were to suffer an embarrassment like that of the “Access Hollywood” tape between now and December 19th and continue to trail in the popular vote, many Republican electors who may be uneasy with a Trump presidency could be faced with a real crisis of conscience.
It is highly unlikely we will see any Republican electors vote for Hillary Clinton. So the outcome of the election is almost certainly not going to change. However, protest votes for others such as Pence, presidential candidate Evan McMullin or House Speaker Paul Ryan would certainly be possible. In fact, immediately after the Access Hollywood tape went public and revealed Trump bragging about groping women, a proposal emerged that had Republican Party leaders actively encouraging voters to select the Trump-Pence ticket with the understanding that GOP electors would be voting not for Trump, but some other alternative.
It was argued that this “hail mary” plan would be needed since early voting had begun and ballots could not be changed. At best. then, Electoral College lobbyists would not see a President Hillary Clinton, but perhaps a President Ryan.
Think such Electoral College scenarios are pure fantasy? Think again.
In 1960, an extensive effort was undertaken within the Electoral College to persuade fellow members to change their votes. Many Southern Democrat electors were looking for an alternative to John F. Kennedy and could not stomach Richard Nixon.
They hatched a plan to deny an Electoral College majority to either candidate and hoped to throw the election to Virginia Senator Harry Byrd. Although some party officials were interested in the idea, they ultimately thought it would be too damaging to the party to follow through with it. Still, one elector, Henry Irwin, a Republican from Oklahoma, cast his vote for Byrd.
In 1976, Jimmy Carter won a razor-thin victory over Gerald Ford. A change in just over 5,000 votes in Ohio and 3,000 votes in Hawaii would have given the election to Ford with 270 electoral votes. Testifying to a Senate committee in the aftermath of the election, GOP Vice-Presidential nominee Bob Dole indicated the Ford-Dole campaign was actively seeking to influence Democrat electors to switch to their ticket. “We were shopping — not shopping, excuse me — looking around for electors,” Dole said. “It just seems to me that the temptation is there for that elector in a very tight race to really negotiate quite a bunch.”
Bush-Cheney plan
In 2000, expecting a popular vote win and an Electoral College loss, the Bush-Cheney team drafted plans to demand a public outcry if such an occasion were to occur. “Democrats for Democracy” was one slogan that was suggested if such a campaign were to emerge. Such an insurrection was wholly aimed at persuading Democrat electors to change their votes if Bush had won the popular vote and lost the Electoral College vote.
Of course, the opposite happened. And in the aftermath, an intense lobbying campaign unfolded to persuade Republican electors to vote for the Democratic candidate, Al Gore, over George W. Bush. In my surveys of the 2000 electors, I found that many received great pressure to change their votes and some even reported receiving death threats.
In my survey of the 2000 Electoral College, I asked whether electors thought Bush was elected legitimately. While 99% of all Republican electors thought that he was, two Republican electors answered “no” and two more indicated they were “not sure.” Just two Republican abstentions would have thrown the contest into the House of Representatives. These four wavering Republican electors must have been uneasy when they ultimately cast their votes for Bush. That no Republican electors cast faithless votes in that election is instructive to our current situation.
The Electoral College has been the target of intense lobbying campaigns, largely taking place outside the public’s eye. While mass defections have yet to occur, it is clear that attempts have been made to upend general election results by appealing to the 538 virtually anonymous individuals in previous elections. This is indeed the case again in 2016.
Whether electors vote as expected, cast symbolic protest votes, or upend the results of the general election will not be known until December 19.
In such a climate, it is helpful to heed the words of Senator Thomas Hart Benton, who in an 1826 Senate committee report on the Electoral College stated that an “elector may give or sell his vote to the adverse candidate, in violation of all the pledges that have been taken of him. The crime is easily committed, for he votes by ballot; detection is difficult, because he does not sign it; prevention is impossible, for he cannot be coerced; the injury irreparable, for the vote cannot be vacated; legal punishment is unknown and would be made inadequate. . . that these mischiefs have not yet happened, is no answer to an objection that they may happen.”
Given the current tumult in the wake of the election, and anti-Trump protests across the country, we might also consider former president Benjamin Harrison’s observation that “an elector who failed to vote for the nominee of his party would be the object of execration, and in times of high excitement might be the subject of a lynching.”
While there is little likelihood we will see an Electoral College coup, the 2016 campaign has been rife with twists and turns that few would have predicted. It would seem that will continue in the coming weeks.