Calling All Electors: Throw the Election to the House, and You Just Might Save Our Country

The Electoral College was conceived for just the kind of national leadership crisis we now face.

In ordinary times, members of the Electoral College have a boring, honorific task. They’re the ones we’ll actually select when we vote on November 8th. There are 538 of them; each state gets electors equal to the number of its Representatives plus its two Senators. About six weeks after Election Day, they meet, once, in their respective state capitals to cast their votes for the presidential candidates who won the popular vote in their respective states. They rubber-stamp the results and go home to watch the pre-ordained outcome unfold on TV.

But these are not ordinary times.

National opinion is agonizingly split. Even within each party, voter segments have deep misgivings about their own nominee—especially on the Republican side, where the previous nominee and two of Trump’s leading primary competitors still refuse to endorse him. Polls report voters motivated more by antipathy to the other candidate than enthusiasm for their own. And fluctuations in the polls have remained within a surprisingly tight range.

Hillary may seem to have the momentum, but some polling indicated Trump leading by a few points nationally after the third debate. Even analysts at the Washington Post and NPR have entertained the possibility of an electoral vote tie at 269-269. This would happen if Hillary wins the usual Democratic states—including Pennsylvania, Colorado, and Virginia—but Trump holds North Carolina and wins Ohio, Florida, Nevada, Iowa, and New Hampshire, where polls have shown an on-again, off-again “toss-up” despite recent Trump eruptions that would normally capsize a candidate. In such a case, each candidate would be one vote short of a 270 majority. Moreover, in that case Hillary would likely have won the national popular vote because of lopsided wins in high-population states like California and Illinois. (Evan McMullin’s rising status in Utah polls potentially complicates this scenario slightly, making the Electoral College even more vital. I’ll return to him below.)

If neither major party candidate has an Electoral College majority, the election goes to the House. Per the Twelfth and Twentieth Amendments to the Constitution, the House would then select Donald or Hillary, right?

Not so fast. Remember: at the end of the day on November 8th any Electoral College tally is only prospective. The electors will not have cast their votes yet. That doesn’t come until December 19th. If the prospective electoral vote is tied (admittedly unlikely) or if it is close (extremely likely), the fate of the presidency will lie in the hands of the electors. That’s because the electors’ options under these circumstances are far broader than most people realize.

 

The Freedom of the Electors

The Constitution does not bind electors to their candidates. It leaves that to the states. Some states legally oblige their electors to vote for the winner of the statewide popular vote; some do not. Of the 538 members of the Electoral College, about 260 are not legally bound in their vote. Due to the cumulative effect of various state decisions over the years, about 100 of those free electors will likely be in the Democratic column. (This assumes, as above, that Hillary wins Pennsylvania which does not bind its electors.) The remaining 160 or so will likely be in the Republican column.

In other words, more of the potential slippage, and potential drama, would be among Republican electors. After the rancor, embarrassment and damage that Trump has inflicted on the party, has he endeared himself to the kind of party regulars who serve as Republican electors?

Follow my hypothetical for a minute: if November 8 voting indicates a tie in the Electoral College, it would only take one of Hillary’s free electors to jump ship for Trump, or one of Trump’s free electors to jump ship for Hillary, to settle the presidency and prevent the election from going to the House. Neither jump is likely.

Alternatively—and again hypothetically if there’s an exact electoral vote tie—it would take only one of the 160 unbound Republican electors to vote for a third candidate to make that person the third-highest vote-getter as the election moves into the House. That one vote would make that person fully eligible for election by the House. According to the Twelfth Amendment, the House chooses from among the three highest vote-getters in the Electoral College.

For purposes of electing a President, the House votes by states, not by representatives: each state gets one vote, no matter its population. The Republicans hold more (smaller) states, giving them an advantage. It only takes 26 votes (states) in the House to select the new President.

Why should we assume that the Republican majority in the House would automatically elect Trump if the Electoral College had provided them with a respectable and plausible alternative as the third-highest electoral vote-getter?

If you’re following this hypothetical scenario, you will realize by now that there’s a wide range of likelier scenarios where unbound electors could be decisive. It wouldn’t have to be a tie. Set aside the Hillary scenarios: if she wins in the Electoral College, she’ll have no trouble holding on to her free electors, and they would have no interest in sending the choice to the House.

But what if Hillary wins the national totals but Trump claims a thin Electoral College win? He could do this by flipping Pennsylvania, even while losing New Hampshire. Or, as an NPR analysis suggested not too long ago, he could do it by holding the historically Republican states (New Hampshire but not Pennsylvania) while winning one of Maine’s votes, ending up just at the finish line. In the former case, Trump could claim 285 electoral votes, in the latter 270. Tight, but good news for Trump either way.

Or maybe not. By the time the Electoral College meets, Trump may have discredited himself more deeply than he already has, especially if he slips the leash of self-restraint even more readily than usual after Election Day, when his guard is down and his dander is up. Trump’s recent incendiary claims about a “rigged” election foreshadow this kind of behavior.

To pull Trump down from 285 to 269, would sixteen of the approximately 160 unbound Republican electors break with custom (but not law) and vote for some stable, civil, conservative Republican of national stature? Would they, in other words, cast their vote for the kind of person who would have won the nomination if the anti-Trump primary vote had not been split? If sixteen might do it, how about twenty? Fifty? Or just one? That’s all it would take under the Maine scenario.

 

What about Evan McMullin?

Although it’s unlikely, Evan McMullin might win a plurality of votes in his home state of Utah on November 8. In that case, and again assuming Hillary and Trump split the other states as envisioned, McMullin would automatically put himself in Electoral College contention. Most observers see this as the premise of his candidacy.

McMullin’s fans assume that Utah’s six electoral votes would automatically make him the third-highest electoral vote-getter. Sadly for McMullin, this is not the case. Utah law does not bind its electors to the plurality winner. More importantly, beyond Utah’s six electors, there would still be about 144 additional unbound Republican electors. In any of these scenarios—whether a Trump-Hillary tie, or a slight “win” by Trump, or a Utah plurality by McMullin—those electors are constitutionally empowered to decide whom to put before the House as the third candidate.

To the degree they consider Trump a threat to the republic, and Hillary unacceptable, those electors could grasp the opportunity to coalesce around a seasoned Republican of national stature. They could present the House of Representatives with someone able to foster not just party unity but also national unity in a time of stress. Even in the event that McMullin managed to bring Utah’s six votes into the Electoral College, it is not obvious that the dozens of unbound Republican electors would coalesce around a barely forty-year-old candidate with no electoral or governing experience. Not when the likes of Ryan, Kasich, and Romney are at hand.

Such electors would risk umbrage. In a crisis year, they might feel that the common good is worth a little umbrage.

 

The Purpose of the Electoral College

Would it be somehow “unfair” if they did so? No. From the perspective of the Founders, such an outcome would not reveal a glitch in the Constitutional system, but one of its features. The Founders (and later amenders) foresaw the perennial danger of demagogy. They forged the Electoral College as a safety belt on mass voting. It was intended to be composed of local notables who would filter popular sentiment lest the people fall for demagogues. The electors were conceived as delegates, not conduits.

How could electors who are not legally bound by their states be faulted for fulfilling the function envisioned for them in the Constitution?

Indeed, under present political conditions, electors will be more conscious than ever of their role and opportunities. So it would actually be surprising if the final Electoral College tally did NOT include votes for someone other than the two top nominees. If so, and if that keeps both Trump and Hillary from 270 votes, then the House must take it up. And when they do, they will have three choices rather than two.

As for Vice President, the Senate would choose a Vice President from the top two Electoral College vote-getters, rather than the top three. Their choice between Kaine and Pence would be far less fraught than the decision before the House.

When facing the presidential choice, the House of Representatives may conclude that elevating either Hillary or Trump to the presidency would pour acid on an already lacerated body politic, plunging the country into divisive recriminations. A national unity presidency, perhaps pairing a judicious Republican President with a Democratic Vice President, might strike Congress as the best way forward—if the Electoral College gives them the opportunity to choose.

In other words, the outcome of the election could lie—from November 8th to December 19th—in the hands of the Electoral College. If they step into the breach, I think I’ll see James Madison smiling. It could be an interesting six weeks.

 

Graham Walker is a constitutional scholar in California and serves as Senior Research Scholar at The Witherspoon Institute in Princeton.

Originally published October 24, 2016, Public Discourse (www.thepublicdiscourse.com)

Does the Electoral College give John Kasich the opportunity to save the country from Trump and Hillary?

Independent-minded Republicans failed to dethrone Trump in Cleveland. Many Democrats in Philadelphia only grudgingly reconciled themselves to Clinton. Is there any way to save the country from the evil-of-two-lessers choice between Donald and Hillary?

Yes, but to explain how we have to dust off the hoary old Twelfth Amendment. Ratified in 1804, the Twelfth Amendment frames the actual process for electing the President—not by popular whim in a national plebiscite but by vote of an Electoral College and, if necessary, by action of Congress.

Not only is it possible for the Electoral College to upend the binary choice of Hillary versus Donald but, under current circumstances and given the right alternative candidate, it’s almost likely. Arguably, the Electoral College was conceived for just the kind of national leadership crisis we now face.

So how does this work?

Remember first the standard arithmetic of the Electoral College. As everybody learned in civics class, or used to learn, Presidents are elected by a majority of electoral votes. The 538 Electors match the sum of U.S. Senators and U.S. Representatives (plus 3 for the District of Columbia). Interestingly, the Electoral College is truly a citzens’ body: there are no “superdelegates” in it, because the Constitution excludes anyone who is a federal official or employee.

It doesn’t matter if a candidate wins the national popular vote; what matters is translating that into an Electoral College majority of 270 or more votes. When Bill Clinton won the presidency in 1992, he received only 43% of the popular vote, but clinched 370 electoral votes because he racked up pluralities in the right combination of states. George H.W. Bush garnered 38% of the popular vote that year resulting in 168 electoral votes because he won 18 states with less total clout in the Electoral College. Ross Perot earned 19% of the popular vote but no electoral votes because he didn’t manage a plurality in any single state.

Electoral College arithmetic magnifies pluralities into majorities. But it also introduces some unusual possibilities into a highly divided political situation, especially when divisions are geographically concentrated. The current tinderbox of division makes it far more likely for the Electoral College to play an outsized role. Large segments of each major party are dissatisfied or even disgusted with their nominees, and millions of voters wonder if either nominee is up to the job.

If the right independent candidate stepped forward immediately after the anguished coronations in Cleveland and Philadelphia, it might well be possible for the Electoral College to upend the election of both Trump and Hillary.

Who would the right candidate(s) be? To put it simply: an independent team capable of winning a plurality of votes against Hillary and Trump in, say, Ohio, Virginia, and Utah.

This sounds too easy, but I’m serious. Let me walk through a hypothetical scenario.

The Cleveland convention is over, the Democrats are done in Philadelphia. Ohio Governor John Kasich, a Republican, and former Virginia Senator Jim Webb, a Democrat, announce an independent bipartisan candidacy. (Maybe they could announce on the day of Hillary’s formal acceptance, to steal some thunder.)

This is not quixotic, because they do not need to win a majority of the popular vote (obviously), and they do not even need to win a majority in the Electoral College. They only need to win a plurality in a small handful of states—battleground states with moderate sentiment where dissatisfaction with Trump and Hillary is high.

Let’s concede to Hillary states where the Democrats have a lock, and throw into this group Pennsylvania, Michigan, Iowa and Colorado—where she will likely edge out her rival. Give Donald the bulk of the traditionally Republican-leaning states, then ask, “Could he edge out Hillary in New Hampshire, North Carolina and Florida?” It’s possible—especially if my independent team did not appear on the ballots there.

That puts the tally at 262 electoral votes for Clinton and 239 for Trump. Neither wins a majority because of the other 37 votes—Ohio, Utah, and Virginia, won by my hypothetical independent team. They win a plurality in Ohio because of the remarkable popularity of Ohio governor John Kasich, who already beat Trump in the primary there. They win a plurality in Virginia because Virginia’s voters have a moderate bent, and because they know former Senator Jim Webb, a decorated combat Marine who also served as Secretary of the Navy. They win a plurality in Utah because though Utah always tilts Republican, the state’s Republican voters are more dissatisfied with Trump than Republicans in any other state and already rejected him in the primaries. Of course Kasich/Webb might win a plurality in a few more states, too, if they tried, like moderate Iowa, Colorado and Nevada.

In this scenario nobody has a majority in the Electoral College. But unlike at the earlier stages, a mere plurality is not enough. The Twelfth Amendment specifies that in a case like this, the final decision shifts from the Electoral College to the Congress. The House of Representatives must then elect the new President, from among the top three Electoral College vote-getters for President; the Senate elects the new Vice President. In the House, each of the 50 states gets one vote for this purpose. The presidential winner in the House must receive a majority, 26 votes. The vice presidential winner must garner a majority of Senators, 51 votes.

You may ask, Which Congress does this voting? The answer is: the one whose members’ terms begin on January 3, 2017; in other words, the new House and Senate.

Unless there is a sea-change in the composition of House, there is likely to be a Republican advantage once the election becomes the job of the Congress. Among other things, the effect of the voting system is to reduce the relative influence of high population states like California and New York—which happen to tilt Democratic in our era (but of course tilted Republican in earlier eras).

If Trump’s candidacy continues to seem toxic, it is not hard to imagine most Republican Congressmen—and more than a handful of Democratic ones—turning to the independent bipartisan team of Kasich and Webb in a moment of national crisis, instead of to the tainted and negatively charged alternatives.

In other words, all John Kasich might have to do to potentially prevent the election of Trump or Clinton would be to earn a plurality of the vote in a small handful states—or even just in three. If Kasich campaigned tirelessly in those three states, and explained to voters that it was their opportunity to save the union, could he win a plurality in Ohio, Virginia and Utah? You bet he could. Especially if he chose a Democratic running mate so that the ticket embodied an old-fashioned bi-partisan spirit—the kind of spirit that got America through times of crisis in the past—the kind of spirit that voters were yearning for when they voted for Barack Obama but were terribly disappointed. Kasich/Webb would be the real thing, and it would have incredible appeal, especially as our sense of national crisis mounts over the next six months due to the character defects of the party front-runners and the mounting threats to stability abroad and civil peace at home.

That’s the hypothetical scenario. And it isn’t about salving the consciences of anti-Trump conservatives. It’s about winning the presidency—winning it fair and square according to the constitutional rules of the game (Article II, §3, Twelfth Amendment, Twentieth Amendment).

If you’re following me so far, let me now add an additional wild card that makes my hypothetical scenario really interesting and even more favorable to an independent slate. The wild card is that the Constitution does not require all the Electors to vote for the popular vote winners in their respective states. Instead, many of them will actually be free agents.

By modern custom, the Electors are bound to cast their votes for the winner in their states. Some states reinforce that custom by state law, as the Constitution permits (but does not require). Of the 538 voters in the Electoral College, 309 (29 states plus D.C.) are bound to their states’ winners. That leaves 229 Electoral College voters (21 states) who are actually free to choose other candidates. (Actually, it’s hard to nail down specifics on four of the apparently “bound Electors” states, and their Electors may turn out to be unbound after all.) If you’re paying attention to the details here, you will find it interesting to know that Ohio, Virginia and possibly Utah all bind their Electors.

Some of the 229 (or more) free Electors will be from states that are almost certainly tied down tightly by party discipline, even without state law. For example, New York’s delegates are free, but they’re going to vote for Hillary; same for New Jersey, Rhode Island and Illinois. And of the other non-bound Electors, the ones from Arkansas are almost certainly going to vote for Trump. But that still leaves at least 136 Electors free to use their best judgment, independent of the popular vote in their states. This includes all the Electors from Texas, the second largest contingent after California (which legally binds its Electors). In other words, the number is large enough to make a big difference in a closely divided vote. Would such Electors risk umbrage if they exercised their freedom? Probably, but in a crisis year some of them might well feel that the common good is worth a little umbrage.

Would this be “unfair”? As the folks over at FairVote.org put it huffily regarding the 229 unbound Electors, “despite the outcome of a state’s popular vote, the state’s Electors are ultimately free to vote in whatever manner they please, including an abstention, with no legal repercussions.”

Memo from the Founders: this is not a glitch, it’s a feature.

The forgotten truth is that the Framers (and later amenders) established the Electoral College precisely because they did not want the president chosen simply by an act of majority will. Like the Senate, the Electoral College was intended to be composed of people of good judgment, well known in their respective states, who would use their best judgment to select the chief executive. The designers of the Constitution did not share the contemporary prejudice in favor of simple majoritarian democracy. They wanted popular sentiment to be baffled, filtered and refined—in this case by semi-independent Electors in the Electoral College—lest the people fall for demagogues. The Electors were conceived as delegates not conduits.

How could Electors—I mean the ones who are not legally bound—be faulted for fulfilling the function and duty envisioned for them in the Constitution?

The freedom of unbound Electors resolves one hiccup that I did not mention in my hypothetical scenario above. According to the Twelfth Amendment, when the selection of Vice President moves from the deadlocked Electoral College into the Senate, the Senators must choose one of the top two vote-getters (whereas the House chooses the President from among the top three). So ideally, once the course of events became clear, the unbound Electors would vote for Jim Webb in sufficient numbers for Vice President so that the Senate could choose him. Otherwise the second-highest vote-getter for V.P. might be Hillary’s ticket-mate Tim Kaine or Trump’s, Mike Pence. Neither of them might be a bad choice, though Webb would be more logical. (And now the only ticket that could keep Virginia from Clinton would be a bipartisan one with Webb on it.)

The pathway I’ve sketched out here is unusual, but not far-fetched. And it is perfectly constitutional.

At worst, an independent bipartisan run by Kasich and Webb would enhance the national reputation of these two men as they steal the show in the televised debates, even if they didn’t make it to the White House. And at best, their candidacy could trigger the Founders’ mechanism for selecting a good president in bad times – and give us all a national civics lesson.

Graham Walker is a constitutional scholar in California, and serves as Senior Research Scholar at The Witherspoon Institute in Princeton.