Much has been made of the fact that Trump did not win the popular vote on Tuesday, losing it to Hillary Clinton by as much as 1 or even 2 percentage points. As a result, the election results have triggered renewed criticism of the Electoral College, with many calling on lawmakers to dissolve it or to amend it so that electors cast their votes for the candidate that wins the most votes nationally — in this case, Hillary Clinton.
In the past 24 hours, at least two petitions have appeared calling on electors to back Clinton instead of Trump. One of those petitions is signed by more than 240,000 people. Their logic: Twenty-one states do not “restrict” their electors, meaning so-called “faithless electors” are free to cast their votes for whoever they please, regardless of who won the popular vote in their state. Moreover, many states only impose a fine on electors who defy their state’s voters, and it’s not clear that such penalties are even Constitutional to begin with.
Enshrined in the Constitution, the Electoral College allows each state to nominate a certain number of “electors” who cast the ultimate vote for president (instead of individual voters) in December. Whichever candidate claims a simple majority of these 538 electors (270) gets the White House.
Clinton will be the fifth presidential candidate to win the popular vote but lose the general election because of the Electoral College.
But while the number of electors is distributed based on the size of each state’s Congressional delegation, it does not always reflect the will of the voting electorate. If the current vote tallies hold, Clinton will be the fifth presidential candidate to win the popular vote but lose the general election because of the Electoral College (the last one was Democrat Al Gore in 2000).
Four electors have already expressed interest in voting for someone other than their party’s candidate: two Democrats (both in Washington) and two Republicans (one in Georgia, one in Texas). With so much anti-Trump sentiment within the GOP, it is theoretically possible for Clinton to pull enough electors across party lines to win the presidency.
In reality, however, the bar for overturning electoral votes is likely too high for Clinton and her supporters. Electors are nominated by their party, and most are deeply loyal. Anti-Trump petitioners would need to drag some 37 Republican electors away from the president-elect to achieve the 270 votes needed to win the White House, a feat the Washington Post’s Philip Bump declared a nearly impossible task.
Still, there are other ways to rid the United States of the Electoral College. Angst over the system has fueled a movement for a “National Popular Vote,” a roundabout way of effectively rendering the system inert. Instead of outright eliminating the Electoral College, which would require a Constitutional amendment, supporters of the idea focus on convincing state-level legislators to require their electors to cast ballots for whoever wins the national popular vote. The effort works as a compact; it only takes effect if enough states whose total electoral votes surpass 270 pass bills agree to participate.
According to the National Popular Vote website, their movement has made notable progress at the state level. Laws agreeing to the compact have been passed by 11 jurisdictions possessing 165 electoral votes, including California, New Jersey, Illinois, and New York, where Gov. Andrew Cuomo signed onto the law to make his state’s participation “permanent” on November 7 of this year. Similar measures have passed through at least one legislative chamber in 22 states.
But none of this is enough to save Clinton this year. Hypothetically, Democrats could push state lawmakers to mount a blitz of legislation to adopt the compact before December 19, but it’s unclear if the laws would even apply to the current election. What’s more, the compact needs to be passed in states with a combined 105 electoral votes to become law, a daunting task in a country where only 18 states have Democratic governors.
In the meantime, perhaps it’s helpful to recall the words of Donald Trump himself, who tweeted this about the Electoral College on Election Day in 2012:
The electoral college is a disaster for a democracy.
— Donald J. Trump (@realDonaldTrump) November 7, 2012