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Could Electoral College Elect Clinton?

Q: Can a Electoral College elect Hillary Clinton on Dec. 19?
A: Yes, it competence be constitutionally possible; yet no, it will not happen, according to choosing experts.

FULL ANSWER

A Change.org petition, now sealed by some-more than 4.3 million people, encourages members of a Electoral College to expel their votes for Hillary Clinton when a college meets on Dec. 19. The petition argues that Donald Trump is “unfit to serve” and that “Secretary Clinton WON THE POPULAR VOTE and should be President.”

“If they all opinion a approach their states voted, Donald Trump will win,” a petition states. “However, they can opinion for Hillary Clinton if they choose. Even in states where that is not allowed, their opinion would still be counted, they would simply compensate a tiny excellent – that we can be certain Clinton supporters will be blissful to pay! We are job on a Electors to omit their states’ votes and expel their ballots for Secretary Clinton.”

A series of a readers reached out to us by phone and email and asked if it was loyal that members of a Electoral College are not firm to opinion for a claimant who won a many votes in their state, and privately possibly a Electoral College could indeed give a presidency to Clinton over Trump.

Let’s behind adult a bit and explain how a Electoral College works, and since — an emanate we addressed in 2008 in an essay that has gotten a lot of views recently.

As we explained then, when U.S. adults go to a polls to “elect” a president, they are in fact voting for a sold line-up of electors. The electors, comparison formed on that party’s claimant wins a many votes in a state, accommodate in their particular states 41 days after a renouned election. There, they expel a list for boss and a second for clamp president. In each state yet Maine and Nebraska, a claimant who wins a many votes in a state is ostensible to accept all of a state’s electoral votes.

Because possibilities can win some states by far-reaching margins and others by a slim one, it is probable for a claimant to win a Electoral College opinion even if he or she loses a inhabitant renouned vote. Indeed that has happened three times in U.S. history, many recently in 2000 when George W. Bush mislaid a renouned opinion by about 540,000 votes to Al Gore, yet won a electoral vote, 271 to 266. (Also, in 1824, John Quincy Adams was inaugurated boss even yet Andrew Jackson perceived some-more renouned and electoral votes.)

And a renouned opinion leader competence not be a same as a electoral leader again this year. Absentee votes are still being counted, yet as of Nov. 15, Clinton was winning a popular opinion tally by some-more than 775,000 votes, even as Trump was handily winning a Electoral College tally.

Why is there an Electoral College? As we wrote in a 2008 story, many of a nation’s founders were indeed rather fearful of democracy, and wanted an additional covering over a approach choosing of a president. As Alexander Hamilton writes in “The Federalist Papers,” a Constitution is designed to safeguard “that a bureau of President will never tumble to a lot of any male who is not in an venerable grade included with a claim qualifications.” The indicate of a Electoral College is to safety “the clarity of a people,” while during a same time ensuring that a boss is selected “by organisation many able of examining a qualities blending to a station, and behaving underneath resources auspicious to deliberation, and to a prudent multiple of all a reasons and inducements that were correct to oversee their choice.”

In complicated practice, a Electoral College is mostly a formality. It is true, as a National Archives and Records Administration notes, that there is “no Constitutional provision or Federal law that requires Electors to opinion according to a formula of a renouned opinion in their states.” But a U.S. Supreme Court ruled in 1952 that states could need electorate to take a oath to support a party’s presidential and clamp presidential nominees from a inhabitant convention. And many do. Some even allot fines of $500 to $1,000 to supposed “faithless electors” for not voting for a party’s nominee, or concede them to be transposed by an alternate.

Whether those pledges or fines could be inspected by a Supreme Court is unclear. As a National Archives notes, “No Elector has ever been prosecuted for unwell to opinion as pledged.” In addition, some-more than 20 states do not have a state law or celebration or state oath requiring electorate to behind a possibilities with a many votes in their state.

“There is a lot of doubt since it is such a wanting occurrence,” Chris Hughes, a staff profession during FairVote, a voting-rights advocacy group, told us.

According to FairVote, there have been 157 “faithless electors” in a story of a U.S. But even that figure is deceptively high. Of those, 71 votes were altered since a strange claimant died before a Electoral College expel a votes. In all, a organisation states, “82 electoral votes were altered on a personal beginning of a elector.” None has influenced a outcome of a presidential election.

The many new instance occurred in 2004 when an unknown solon from Minnesota, affianced to opinion for Democrat John Kerry, expel a presidential opinion instead for Kerry’s using mate, John Edwards, some trust by mistake. In 2000, a Democratic solon from a District of Columbia declined to expel her opinion “to criticism a miss of congressional illustration for Washington, DC,” FairVote notes.

“Presidential Electors are theoretically giveaway to opinion as their consciences dictate, something a founders expected Electors would indeed do underneath Hamilton’s Electoral College invention,” Laurence Tribe, a highbrow of inherent law during Harvard Law School, told us around email.

Tribe pronounced a constitutionality of commanding a excellent on a “faithless elector” is “open to doubt, and it is even some-more puzzled that a justice would enforce any Elector to be ‘faithful’ to a State’s winner-take-all outcome. Nor is it expected that a Vice President, who presides over a routine of opening a Electors’ ballots and counting a votes expel by a 538 Electors, would feel giveaway to ‘correct’ a unreliable Elector’s vote. So, in theory, if adequate Electors affianced to Mr. Trump decrease to make him President-elect and opinion instead for Secretary Clinton, she would turn a President-elect and would be a 45th President on holding a Oath of Office on Jan 20, 2017.”

But Tribe pronounced such a unfolding is rarely doubtful as a matter of practice, in partial since it would expected be against by President Obama and Clinton herself.

“In a stream situation, where both obligatory President Obama and a claimant who won a renouned infancy nationwide, Hillary Clinton, have done such a outrageous indicate of usurpation Donald Trump as a President-elect, and where both Obama and Clinton have regularly insisted that such acceptance is critical to a pacific transition a democracy requires, we honestly can't suppose possibly of them ancillary a due pierce to have a Electoral College elect a former Secretary of State on Dec 19,” Tribe said. “And, but their support, a pierce seems cursed to fail.”

Indeed, Obama pronounced during a press conference on Nov. 14, “Look, a people have spoken. Donald Trump will be a subsequent President, a 45th President of a United States.”

In her concession speech, Clinton said, “Donald Trump is going to be a president” and combined that Americans “respect and cherish” a “rule of law.”

There is another outrageous unsentimental jump to a unfolding called for in a petition.The electorate are selected by a state parties. They are customarily people heavily concerned in a debate of their party’s hopeful or active in a state party.

“The electorate are mostly people connected to a domestic celebration care in their states,” Richard Pildes, a highbrow of inherent law during New York University School of Law, told us around email. “So if we try to design how this competence happen, it would have to be a celebration care in some organisation of states that is assured to desert Trump.”

Kermit Roosevelt, highbrow of law during a University of Pennsylvania Law School, put it succinctly. He pronounced that while there is “no transparent requirement in a Constitution that electorate opinion for a claimant they’re affianced to … it’s really doubtful that defections will occur now.”

Sources

Change.org. Petition: “Electoral College: Make Hillary Clinton President on Dec 19.”

Miller, Joe. “The Reason for a Electoral College.” FactCheck.org. 11 Feb 2008.

National Archives and Records Administration. “U.S. Electoral College: About a Electors.”

Gore, D’Angelo. “Presidents Winning Without Popular Vote.” FactCheck.org. 24 Mar 2008.

New York Times. “Presidential Election Results: Donald J. Trump Wins.” Accessed 15 Nov 2016.

National Archives and Records Administration. Presidential Election Laws: The Constitution.

Justia. U.S. Supreme Court. Ray v. Blair 343 U.S. 214. 1952.

FairVote. “Faithless Electors.

White House Website. Press Conference by a President. 14 Nov 2016.

Reilly, Katie. “Read Hillary Clinton’s Concession Speech for a 2016 Presidential Election.” Time. 9 Nov 2016.

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