Tomorrow the real presidential election takes place and it’s already surrounded in controversy. With Trump losing the popular vote, but likely winning the electoral vote, the threat of “Faithless Electors” throwing the system awry now dominates the news cycle. But the specter of a constitutional crisis is an artificial one – Trump is going to win 270 electoral votes.
Two scenarios show why it’s so unlikely that “Faithless Electors” will upset the apple cart of American politics.
Scenario 1: Electors follow state law, but are unfaithful to the popular vote.
First, let’s look at how many states are actually in play. The majority of states have laws that bind the elector to vote for their party’s nominee or the winner of the state’s popular vote. (Information for this map came from the National Association of the Secretaries of State.) The grey states reflect those states where Electors can be unfaithful without violating state law.
This doesn’t leave many states in play, but there are certainly a couple big ones – Texas, New York, and Pennsylvania immediately jump out as significant. But we need to look a bit deeper. Of those states where electors are permitted to be unfaithful, not all of them were won by Trump.
Trump is projected to win 306 electoral votes. This means that to lose the election he would have to lose 37 electoral votes from Faithless Electors from those states in red that represent 155 electoral votes. That’s almost 25%. This would require a lot of defection from states that he won by large margins. This becomes even more unlikely when we remember that electors are selected by the party that won the state popular vote. Chances this happens are slim to none.
Scenario 2: Electors violate state law to vote against Trump.
Full disclosure on this scenario – I think laws that prevent electors from voting how they choose are likely unconstitutional. The 12th Amendment outlines the process that establishes the rights of electors to vote and while the Supreme Court has ruled that states are permitted to require pledges from their electors, that is very different from controlling how they actually vote. America is a Republic, not a strict Democracy. If people don’t like this, well, tough, change the Constitution.
This scenario is unlikely to occur. Electors have historically shown themselves to be unwilling to violate state law. This could be because they risk breaking the law for no reason – their vote may not even count. This is because many of the states with laws binding electors will simply replace them if they don’t vote the way they’ve pledged. This means that if an elector tried to vote for Kasich, they would be considered absent and a new elector would be selected.
However, if 37 electors were actually unfaithful in violation of state law that would be a huge constitutional crisis – and I don’t think that’s going to happen.