Challenging the Electoral College Vote Isn’t Futile, Though Trump Will Still Win

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Sign at a Women and Allies protest in New York on December 12. Photo: Pacific Press/LightRocket via Getty Images

On Monday, December 19, America has one last chance to prevent Donald Trump from becoming president — or so the most hopeful Trump opponents claim. Technically, they’re right. The Founding Fathers adopted the Electoral College to ensure that the presidency would not go to an unqualified candidate who won over the masses with his “talents for low intrigue, and the little arts of popularity,” as Alexander Hamilton put it.

Many say the election of a reality-TV star with extensive foreign ties is exactly the kind of scenario the Electoral College was created for — especially because Hillary Clinton won the popular vote by more than 2.8 million votes. But the political reality is that Trump will be sworn in on January 20. If he fails to receive the 270 majority required to secure the presidency, the election will be decided by the House of Representatives, where Republicans have a solid majority. Even if “faithless electors” give another candidate more than 270 votes, an obscure rule will allow Congress to challenge the outcome of the Electoral College vote. Republicans in Congress may have reservations about Trump, but they’re not about to humiliate their party, risk their chance to implement a conservative agenda, and potentially plunge the country into chaos by overturning the election results.

Nevertheless, Never Trumpers see the Electoral College as their last chance to stop the president-elect, and there’s a nationwide movement under way to encourage electors to go rogue. Trump won 306 Electoral College votes to Clinton’s 232, and if 37 of his electors vote for someone else, no candidate will secure a majority. The effort is being spearheaded by a group that’s dubbed themselves the “Hamilton Electors.” At last count, eight Democratic electors from Colorado and Washington and one Republican had pledged to vote for a GOP moderate as a “compromise candidate.” (Their top choice, Ohio governor John Kasich, has asked electors not to vote for him.)

In addition to launching a social-media campaign to win over other electors, two Hamilton Electors from Colorado filed a lawsuit challenging a state law that requires them to vote for the candidate who received the most votes in Colorado. Similar legal efforts are under way in California and Florida.

An attorney for Trump argued on Monday that the lawsuit “threatens to undermine the many laws in other states that sensibly bind their electors’ votes to represent the will of the citizens, undermining the Electoral College in the process” — which is the electors’ goal. In 28 states, “faithless electors” can be fined, jailed, or replaced, but the plaintiffs argue that the Constitution says electors, not voters, select the president. The Colorado electors were dealt two setbacks this week when a judge rejected their request for an injunction to prevent the enforcement of the state’s law against faithless electors, and ruled that they could face criminal charges.

Larry Lessig, a Harvard law professor who’s part of a group offering free legal advice to GOP electors, claimed on Tuesday that despite these developments there are 20 Republican electors considering voting against Trump. “Obviously, whether an elector ultimately votes his or her conscience will depend in part upon whether there are enough doing the same,” Lessig said. “We now believe there are more than half the number needed to change the result seriously considering making that vote.”

However, two Republican National Committee sources told Politico that the party has been in touch with the 306 Republicans in the Electoral College multiple times, and they are confident that there’s only one who’s planning to flip.

In addition to the RNC and the Hamilton Electors campaign, the 538 delegates to the Electoral College are facing tremendous pressure from the public. More than 4.8 million people have signed a change.org petition calling on “Conscientious Electors” to vote Clinton into office. Several websites have compiled electors’ email addresses, and more than 186,000 people have used the site asktheelectors.org to reach out to delegates. Two Democrats in Congress, Representatives Jim Himes and David Cicilline, have suggested that electors should revolt against Trump.

Electors say they’ve been inundated with hundreds of calls, emails, and letters, and while voting in their respective statehouses on Monday, they’ll get to see some of the people begging to them to change their vote. Demonstrators gathered in more than two dozen cities on December 12, but the protests were relatively small and didn’t get much attention. However, several groups — including Americans Take Action, the Electoral College Petition, Progressive Change Campaign Committee, and Democracy Spring — are organizing protests in all 50 state capitals for December 19, and they expect thousands to turn out.

Certainly a large number of people rallying to overturn the Electoral College vote believe that 2016 could hold one more surprise, despite evidence to the contrary. But denying Trump the presidency isn’t the movement’s only goal. Politico reports that a survey of the Progressive Change Campaign Committee’s 23,000 members found that roughly half were confident that Trump would be president, but about 91 percent were still in favor of lobbying electors. These are the main reasons people are pushing for an Electoral College upset, even if they don’t think it will succeed.

To Stand Against Trump

Denying Trump his 306 electoral votes could be important symbolically, as it would undercut Trump’s claim that he secured a mandate and serve as a show of strength from his opponents. As Brian Beutler explained this week in The New Republic:

Trump opponents will ultimately need a clear resistance strategy, but in a leaderless environment, they have been floundering in the dark for more than a month now, grasping for short-term anti-Trump resistance tactics.

None of them has been particularly effective, but we have learned through these efforts that Trump is highly sensitive about the fact that he lost the popular vote by a margin of millions, and his Electoral College margin is historically low. He and his supporters want to claim a mandate, and feel threatened by the awareness that he will preside over a term of minority rule.

Thinning that electoral majority even further, through GOP protest votes, would be a small but useful public testament to both his unfitness for office and the lack of public confidence in his ascent to power. For the time being, this is what official resistance to Trump will look like: numerous battlefronts, some invisible, each inconsequential, but that have a real impact when taken together.

Undermining Trump, not preventing him from taking office, is the essential goal of the Progressive Change Campaign Committee’s protest efforts, according to a letter sent to the group’s supporters this week.

“First, by generating media attention to the idea that Electors who support the popular vote winner, we can make it a source of mockery when Trump claims a ‘mandate’ for an authoritarian, anti-worker, right-wing agenda. And when establishment Republicans in Congress claim a ‘mandate’ to ram millions of dollars of corporate giveaways through Congress,” wrote Adam Green, the group’s co-founder. “Second, these events will force the media to report that Trump’s razor thin victories in battleground states were made possible in part by massive voter suppression.”

To Highlight Election Irregularities

As Green mentioned, another goal is to draw attention to issues with the voting process in 2016, including voter suppression measures that followed the Supreme Court’s gutting of the Voting Rights Act and alleged Russian meddling in the election.

Reports that the CIA concluded Russian hacks of top Democrats’ emails were meant to aid Trump, rather than just destabilize the U.S. election in general, sparked calls for electors to be briefed on the issue prior to Monday’s vote. Initially ten electors demanded security clearance to learn more about Russia’s alleged interference, and now 28 Democratic electors and one Republican are requesting an intelligence briefing.

“Separate from Mr. Trump’s own denials of Russian involvement in the election, the confirmed communication between Trump’s aides and those associated with the Russian election interference activity raise serious concerns that must be addressed before we cast our votes,” they said in a letter to James Clapper, the director of national intelligence.

Christine Pelosi, daughter of House Democratic leader Nancy Pelosi, spearheaded the effort, which is backed by speaker of the New York City Council Melissa Mark-Viverito and Syracuse Mayor Stephanie Miner. John Podesta, Hillary Clinton’s former campaign chairman, said this week that the campaign is supporting the effort as well.

“The bipartisan electors’ letter raises very grave issues involving our national security,” Podesta said. “Electors have a solemn responsibility under the Constitution and we support their efforts to have their questions addressed.”

To Challenge the Electoral College System

Trump’s election marks the second time in recent years that a popular-vote winner was denied the presidency, and Clinton’s lead of nearly 3 million votes is much larger than Al Gore’s 540,000 vote lead over George W. Bush. Though there’s debate even among liberals about whether abolishing the Electoral College is a good idea, efforts are under way to get rid of the system.

The simplest way to end the Electoral College would be to pass an amendment to the Constitution that says presidents shall be elected via popular vote. Last month, retiring Democratic senator Barbara Boxer introduced a bill to create such an amendment. “The Electoral College is an outdated, undemocratic system that does not reflect our modern society, and it needs to change immediately,” Boxer said. “Every American should be guaranteed that their vote counts.”

But the Electoral College system is advantageous for battleground states, and less populous states, so that amendment would not be ratified by three fourths of the states, even if it could be passed by Congress.

There’s also creative effort under way to get around the Electoral College without abolishing it completely. The National Popular Vote Interstate Compact is an agreement among states to award all of their electoral votes to the national popular-vote winner, regardless of who wins the state. However, the same political considerations apply. The compact will only go into effect if it’s adopted by enough states to give the winner of the popular vote 270 electoral votes, and so far only ten Democratic states, totaling 165 electoral votes, have signed on.

As it stands, the Electoral College system won’t be abolished or even just reformed because it’s been beneficial for Republicans, and that party is in control — but denying Trump electoral votes may change that.

Writing in the Washington Post, Josep Colomer, a professor of political science at Georgetown University, explains that the Electoral College is a “medieval relic.” Electors were once used throughout Europe and the Americas, but now such a system only exists in the U.S. Colomer argues we’re unlikely to get rid of it because:

… virtually every time a Latin American country replaced the electoral college with the popular vote, the change came in response to a major political crisis. For instance, in Brazil, direct presidential elections were held for the first time after its monarchy was replaced by a republic in 1894. In Colombia, the change came after a military dictatorship was overthrown and replaced with a new constitution in 1910. In Mexico, direct presidential elections followed a revolution in 1917. In Venezuela, a free and fair election was held for the first time in a brief interlude between dictatorships in 1947. And Argentina undertook a major constitutional reform a few years after getting rid of a military dictatorship and establishing democracy in 1994.

Denying Trump 270 electoral votes only to have the House elect him anyway wouldn’t be on the same scale as those political crises, but it would be jarring. At the very least it would spark a more serious and sustained effort to clarify whether the Electoral College exists to rubber-stamp the election outcome or give Americans one last chance to keep an unfit candidate from assuming the presidency.

Electoral College Fight Matters, Though Trump Will Still Win