On election night, Donald Trump presumably won 306 electoral votes — 36 more than needed to become president-elect. But he’s not officially president until those presumed electoral votes become official ones, a step that is likely to take place when the Electoral College meets December 19.
But there’s no guarantee.
Some state parties make electors take a moral pledge to vote for the candidate who won the popular vote there. Electors aren’t legally prohibited from casting their ballot for another candidate, however.
So far, just one Republican elector — Chris Suprun of Texas — has announced he won’t support Trump. Thirty-five more Republican electors must decide to follow Suprun’s lead between now and next Monday for Trump to be rejected, in which case the decision over who becomes president will be sent to the GOP-controlled House of Representatives.
But Larry Lessig — an anti-Trump Harvard University constitutional law professor and co-founder of “Electors Trust,” which provides “free and strictly confidential legal support to any elector who wishes to vote their conscience” — says at least 20, and perhaps as many as 30, Republican electors are considering rejecting Trump.
Citing “three groups that I know of working with /supporting electors,” Lessig told ThinkProgress in an email that his figure is “based on my confidence in the reports from these three groups.”
During an MSNBC interview with Chuck Todd on Tuesday, Lessig said the goal he shares with groups like Hamilton Electors is to persuade at least 40 Republican electors to say they’re considering dumping Trump.
“Of course if they don’t get to 37 I doubt any of them beyond [Suprun] is going to vote against Donald Trump,” he said. “But if the number gets to 40, or around 40, I think you’re going to see a very interesting dynamic as they see there’s a reason for them to exercise the vote of conscience which I think they’re all struggling with right now.”
Lessig explained why he thinks electors who break their pledge to support Trump and vote for somebody else might actually be doing just what the Founding Fathers intended.
“One they take the pledge, they must vote that way — unless there’s an overriding moral reason not to vote that way,” he said. “Reasons like the threat of foreign government involvement in our election — or a candidate who refuses to live up to the foreign bribery clause by disassociating himself or divesting himself from assets that could be affected by foreign governments — raise exactly that reason.”
Lessig acknowledged it’s possible that the House will elect Trump president even if the Electoral College rejects him. He said his only goal is “to let the electors exercise their judgment.”
“We have a system — the system is the Electoral College, which has the right to make a judgment at the end whether to confirm the Democratic result,” he said. “And I think what would happen is not that the Electoral College would choose, but that it would go to Congress.”
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Lessig’s position on the constitutionality of the Electoral College rejecting Trump is based on Federalist Paper №68, which places a burden on electors to ensure that “the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”
As more information has emerged about ties between Russia and Trump — the CIA reportedly concluded Russia used cyberattacks to manipulate the election to Trump’s advantage and his secretary of state nominee received the Order of Friendship from Vladimir Putin — attention has turned to another passage of Federalist 68, which advises electors to be wary of “the desire in foreign powers to gain an improper ascendant in our councils” through a candidate who will do their bidding.
Salon, citing an anonymous elector, reported that Trump’s campaign is worried enough about the electoral result that they’re “pressuring Republican electors into voting for them under ‘threats of political reprisal.’”
Politico, meanwhile, reports that as of Tuesday night, 55 electors — Suprun and 54 Democrats — had called upon national intelligence director James Clapper to authorize an intelligence briefing so they can learn more about Russia’s cyberattacks ahead of December 19.