Tag Archives: electoral college

A brief primer on the electoral college

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I do not really expect there will be fireworks in the 50 state capitols next Monday, but if there are, here is what you need to know.

First, the electoral college is mandated by both Article II, and by the 12th and 20th amendments to the Constitution.  The Twelfth Amendment is what matters, as it in effect, replaced the rules from Article II.   So read it.

What is the process?

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.

The electors vote for President and Vice-President, on distinct ballots.  AND they make separate lists of all persons who were voted for as President, and all people voted for for vice-president.  Once they vote, the ballots (and the lists) are sent to the Senate, where the president of the senate (a.k.a. the Vice-President of the United States) will tabulate the votes.  If there is no majority (270 of 538 electoral votes), the election then goes to the House of Representatives.

Is there anything in the Constitution that prevents an elector from voting for ANYONE?  No.  State laws might prescribe who an elector can vote for, but if we assume that the Constitution is the highest law of the land, and if a state law and the Constitution are in conflict, the Supremacy Clause of Article VI provides us with clear guidance:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

So, I would argue that the electors can vote for whomever they want as long as those individuals are qualified (thus President Obama is not, he has served two full terms). Indeed, the Constitution does not even anticipate a popular election for electors. Of course, if electors “go rogue”, there might be litigation, but they have the Constitution on their side, a constitution that was written with the assumption that electors, not voters in popular elections, would select the president.  Or at least select the list that the House of Representatives would use to elect the president.

How will the House of Representatives vote if there is no electoral college majority.

The House of Representatives votes, one per state, to elect the president, from any of the top three candidates voted by electors in the states.

… and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice.

This means that there are 50 votes in the House, one per state delegation, and they vote “from the persons having the highest numbers not exceeding three on the list of those voted for as President.”   Poorly worded, but simply translated, the slate the House gets to choose from is the top three vote getters in the electoral college for PRESIDENT.

This also means that the only way a vice-presidential candidate (say Pence) becomes president, is if he was one of the top three names voted FOR PRESIDENT.  It also means that if electors want a Republican like Kasich to be president, they would have to vote for him, to get him on the list.  If you are not on the list, and not the top 3 vote-getters, you are not going to be president.

The 20th Amendment, in section 3 provides the final piece of the picture, dealing with the succession of a president, and what happens if no president is “qualified” by the beginning of the term.

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified

It is messy.  It is complex, and due to amendments, it is confusing.  But the electoral college really isn’t that hard to break down.  Will it come into play after next Monday?  Frankly,I doubt it, but I also doubted that a sexual predator and reality tv star would win an election in which both the Director of the FBI and the president of the Russian Federation had intervened to influence the outcome.  So what do I know?  My hope is that they go rogue.  It would be the perfect end to this year.

Russia, fake news, and undue election influence, probably not the constitutional crisis you are hoping for

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The news this morning is filled with reports of high confidence from US intelligence agencies that Russia intervened in the presidential election, hacking into the servers of both the DNC and RNC, but only releasing information from the DNC to harm Hillary Clinton.  The New York Times is suggesting that Russia didn’t actually think Trump would win (lets be honest, who did?), but was trying to find ways to further damage Clinton as president.  Trump is still denying the whole thing, but the evidence is growing increasingly strong that there were unprecedented efforts by a foreign nation to influence our election.  What there isn’t evidence of, however, is actual vote tampering, or fraud in the vote count.  That is an important distinction.  If the latter was true, then the entire legitimacy of the election would be called into question, and we would have a true constitutional crisis.

What did happen was that Russia tried to influence the election by enabling the spreading of anti-Clinton propaganda.  This is in the same vein as Macedonian teenagers creating fake news sites.  It is deeply disturbing, but not unprecedented. How many times has the CIA tried to intervene in foreign elections? (That is a blog in itself, just google the CIA and Guatemala 1954, for one example).   The end result should be an increase in international tensions with Russia, and even a potential international crisis.  Yet, given the chumminess of Trump with Putin, that crisis might only last until January 20.  Now don’t get me wrong, I think foreign interference in our elections is nothing to scoff at.  Indeed, it is just a small step from hacking emails to hacking electronic voting machines.  But there is no evidence that the latter happened.

In many ways, Russian influence was just one more stream of anti-Clinton rhetoric. The mainstream media basically gave Trump free airtime for months on end, with few media outlets challenging him.  The alt-right put out a steady stream of misinformation.  And people chose to vote for Trump. They voted for Trump in large enough numbers in places where it mattered, that he gained the required 270 electoral votes.  It will probably be impossible to actually measure the influence that Russia had in swaying the election.  What we do know is that there were a lot of people who voted for for Trump because they felt that they had been left behind in the economic recovery, and they did not think that they would be any better off under Clinton then they were under Obama.   Whether or not it is rational to believe that they will be better off under Trump is another question.  Nor do we know if they would have voted for him absent Russian interference.

The latest revelations only adds fuel to the frustration of liberals and Democrats that Trump won the election even though Hillary Rodham Clinton won the national popular vote by about 2.5 million.  Nation-wide, about 2 percent more Americans voted for her than voted for Trump.  This is not the first time an individual has won the electoral college, while losing the popular vote. Just look at Al Gore.  The difference is that Gore won by an extremely small margin, and were it not for “hanging chads” in south Florida, he would have been president.  Hillary Clinton, by contrast, had a resounding popular vote margin.  Yet, we do not elect the president with a popular vote, we select electors in each state, who cast a vote for president.  Since the mid-1800s, that process has been based on state wide elections.

So is this a constitutional crisis?  I don’t think so. Nor do I think that the electoral college will act to “fix” it.  There might be some “faithless” electors, but it is’t going to change the result.  What Russian tampering, fake news, and a “lost” popular vote will do is weaken the credibility of the next president. But he will so busy tweeting, and running Celebrity Apprentice, that it will probably have little impact.

Afterword
The more I think about this, the more I think the bigger story may be that the Obama administration went to the Congressional leadership in September, seeking for a bi-partisan agreement to go public with the knowledge of what the Russians were accused of doing, but the Senate Majority Leader refused, claiming it would an effort by Obama to help Clinton win the election.   That might be the biggest part of this story — the leadership knew about it, and allowed it to go on.

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