Already One Rogue Elector; But Many More Are Suddenly Possible

By JOHN F. BANZHAF. Originally published at ValueWalk.

Electoral college revolt? Unprecedented Situation Raises Odds of Election Being Decided by Electors or House

Since at least one elector has already publicly announced that he will not vote for the candidate he is pledged to, the door is open wide for other rogue electors – sometimes called “faithless electors” – to likewise not only break their pledges, but perhaps for the first time in history to actually deny the election to the candidate with the most electoral votes.

Some very unusual circumstances make this somewhat more likely than in the past, notes public interest law professor John Banzhaf, whose Electoral College studies are widely accepted.

In a close election, only a few electors who do not cast their electoral votes as they had pledged can change the outcome of the election, either by putting the candidate with a not quite enough electoral votes over the top, or perhaps even by throwing the presidential election into the House of Representatives.

Although there have been more than 150 instances in the past where electors changed their votes, in none has the outcome of the presidential election been fundamentally altered.

Many states have laws purporting to require electors to cast their electoral votes for the candidate to whom they are pledged, and/or to punish those who don’t. But these laws are of doubtful constitutionality, and courts may well choose not to enforce them.

For example, a federal judge recently held unconstitutional Virginia’s statute that provided criminal penalties for delegates to party conventions who do not follow the results of the presidential preference primary, saying that the statute “exceeds the powers retained by the Commonwealth of Virginia under the Constitution of the United States and cannot be enforced.”

In the very unusual if not unprecedented circumstances surrounding this election, rogue electors are more likely than in the past. Thus the following circumstances are at the very least possible, although the likelihood of any one or more occurring probably remains small.

Electors pledged to Donald Trump might be persuaded to switch their electoral votes by some recent events which occurred long after the electors agreed to stand for office. For example, the revelations about his so-called “locker room” statements, Trump’s alleged 2006 affair outside his marriage, etc., might persuade some female electors to change their minds.

Similarly, the various “October surprises” Hillary Clinton is now facing – including those from recently leaked emails, or even the FBI’s re-opening of inquiries – could be sufficiently persuasive.

Another – albeit a much less likely scenario – would be for an indictment supported by apparently overwhelming evidence to come down between her apparently winning on Election Day, and the day of her inauguration. In such a case, the Democratic National Committee may conclude that she cannot effectively govern as president, and that she must be stopped before she could be inaugurated and issue a pardon to herself.

Thus they might agree upon a consensus Democratic candidate – e.g., Joe Biden – and try to persuade all Democratic electors to vote for him instead of Clinton.

If enough electors did so, the next president might be someone who nobody voted for.

If many but not all of the Democratic electors agree to switch their votes to a compromise Democratic candidate, no person might have the required number of electoral votes. In such a case, the House would determine the next president, who would likely be Trump.

No one, of course, can predict the future, but the events surrounding this election have been so unpredictable from the beginning that no possibilities can be safety ignored, argues Banzhaf.

The post Already One Rogue Elector; But Many More Are Suddenly Possible appeared first on ValueWalk.

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