The election is not over. Well, technically. Sort of. Maybe.
On December 19, 538 members of America’s voting elite — the Electoral College — will cast what are probably the final votes of the 2016 presidential election. For most of American history, this moment is procedural: even when candidates have won the popular vote but lost the Electoral College, there is typically little controversy over how Electors will vote — in this case, 232 votes for Hillary Clinton, 306 for Donald Trump.
But 2016 is not a typical year, and this is not a typical election. Many Republicans have been outspoken opponents of Trump, including members of the Electoral College. Meanwhile, several Electors are asking the CIA to brief them on classified details of alleged Russian interference with this year’s election, noting that such information was not made available to the general public before they voted. And while many debate whether the Electoral College should exist at all, some argue that it was created specifically to stop people like Trump from becoming president.
So is there a way for the Electoral College to give Clinton a win, or at least stop Trump? Here are the possible scenarios, ranked in order of likelihood from least to most.
37 or more Republican Electors decide to vote for Hillary Clinton instead, making her president
On paper, this seems like a logical outcome. After all, Clinton won the popular vote by more than 2.8 million votes — more than several elected presidents, and it took less than 24 hours for her supporters to launch petitions urging Electors to give her the White House. She only needs 37 more electoral votes to win, so it’s plausible the Electoral College could be swayed to reflect the will of the masses.
In practice, however, this is arguably the least likely of all possible scenarios. Electors are selected by their respective parties, and usually sign pledges promising to cast a ballot for their party’s nominee, whoever that may be. Many Republican Electors are party diehards — former elected officials, party volunteers, etc. — making the probability of any backing Clinton roughly zero.
270 Electors agree to vote for a moderate Republican, instantly granting him/her the presidency
Okay, so maybe you couldn’t get loyal Republicans to vote for a Democrat, but what if Democrats decided to throw their weight behind a moderate Republican — basically, anyone but Trump — and encourage GOP Electors to do the same? It certainly wouldn’t be an ideal scenario for progressives, but it would stop Trump, and several GOP Electors have publicly expressed their disdain for the business mogul. A group of 10 Electors — nine Democrats and one Republican — have already endorsed this in concept, calling themselves the “Hamilton Electors” and working to encourage others to join their ranks.
What if Democrats decided to throw their weight behind a moderate Republican — basically, anyone but Trump — and encourage GOP Electors to do the same?
Yet this strategy has two major issues.
The first is that even if every Democratic Elector signed on to this plan — a tough sell, given that some threatened to vote for someone other than Hillary Clinton before the Election — not all members of the college are “faithless electors,” or people who can vote for whoever they want. Instead, several states “bind” their Electors, legally requiring them to support whoever won the state’s popular vote. Some states only impose a small fine, but others “replace” Electors who defect or even mandate jail time. Some legal scholars believe these laws are unconstitutional, but they’re unlikely to be overturned by Monday, although not for lack of trying: two Democratic Electors in Colorado recently filed suit to try and opt-out of a law requiring them to vote for the state’s popular vote victor, but a judge ruled against them earlier this week. A similar lawsuit in Washington State was also shot down on Wednesday, although a case in California remains outstanding.
This means that even if all 232 Democratic Electoral voters wanted to vote for someone other than Clinton, many of them wouldn’t be able to.
The second problem is getting at least 37 Republican Electors to participate, which brings us to our third scenario…
37 GOP Electors vote for anyone other than Trump, forcing Congress to vote instead
This outcome is also highly unlikely, but signs indicate that it is technically possible. There are far more than 37 “faithless” GOP Electors, and it stands to reason that many could be swayed to back a moderate Republican other than Trump. In fact, Harvard University law professor and political activist Larry Lessig claimed on Tuesday that at least 20 — and possibly as many as 30 — GOP Electors are primed to flip. If advocates can push that number past 37 by Monday, neither candidate would have the required 270 votes. That means the decision would go to the House of Representatives, at which point lawmakers are constitutionally required to choose which of the top three electoral vote getters will become president.
Congress decided two previous presidential elections — once in 1801, then again in 1825, the second time giving John Quincy Adams the presidency despite his losing the popular vote.
It may sound crazy, but the scenario is certainly not unprecedented. Congress decided two previous contested presidential elections — once in 1801, then again in 1825, the second time giving John Quincy Adams the presidency despite his losing the popular vote.
But this situation is still riddled with pitfalls. For starters, it’s not entirely clear who the defecting Electors would back. The only GOP Elector to publicly declare his intention to vote against Trump is Christopher Suprun, who named Ohio Gov. John Kasich as his ideal candidate. But Kasich has since asked Electors not to vote for him, saying “our country had an election and Donald Trump won.” No other potential candidates have been named (e.g., Jeb Bush, Sen. Marco Rubio, or independent conservative candidate Evan McMullin), but it’s unclear if any of them would accept the vote even if they were. (ThinkProgress reached out to Rubio and McMullin’s offices for comment, but did not receive a reply by press time.)
What’s more, even if the Hamilton Electors and others managed to rally behind a willing candidate and force the vote to Congress, there is little chance that the House of Representatives would choose anyone other than Trump. Building such a coalition would be unprecedented, and profoundly difficult: getting Democratic Electors to support a GOP candidate is far easier than getting Democratic Congressmen and women from deeply progressive districts to do the same, and Republican lawmakers are even less likely to vote for anyone other than the party’s nominee.
Still, for those who want to stop Trump, this remains the most realistic strategy.
Democrats and other Trump opponents will probably push for any of these scenarios anyway — because they all hurt him
As unlikely as these scenarios are, Trump’s opponents will probably campaign for them anyway — and not necessarily because they’ll stop him from becoming president.
Even if only a few GOP Electors say no to Trump next week, the result still muddle any claim he has to a broad mandate, and pushing the vote to Congress would deeply damage his credibility as a representative of the masses. What’s more, a House vote would create an instant record of every GOP member who supports him, something Democrats would happily cite in future election cycles if a Trump presidency proves unpopular with voters.
Is any of this going to happen? Probably not, but for opponents of Trump—be they Democrats or Republicans—there is certainly impetus to try.