Constitution Daily

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Don't expect Electoral College drama on December 19

November 15, 2016 by Scott Bomboy


Despite a popular petition on the website about how the nation’s 538 electors should vote on December 19, there seems to be little chance of the tactic changing the recent presidential election’s outcome.

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Richard Mentor Johnson, who survived faithless electors in 1837

As of Monday afternoon, more than 4.3 million people signed an online petition “to make Hillary Clinton President on December 19” by calling on electors in the Electoral College to ignore their commitments to vote for Donald Trump.

For now, Trump has 290 votes in the Electoral College, compared with 228 for Clinton. The vote counting continues in two states: Michigan and New Hampshire.  But Trump only needed 270 votes to clinch the election, which he received early on November 9.

Regardless of what happens on December 19, Republican candidate Trump will become the elected President on January 6, 2017, unless some vastly unforeseen event prevents Congress from counting the Electoral College votes during a joint meeting of Congress, or the President-elect is unable to take his oath on Friday, January 20, 2017.

In the end, the House and Senate must agree on any changes made to the Electoral College vote during the in-person Electoral College voting that takes place on December 19 at 50 state capitals and in the District of Columbia. When the official vote certificates are opened by Congress on January 6, the Constitution allows challenges to “faithless electors” who switch their votes, as long as one member of the House and one member of the Senate agree on the same challenge.  If a challenge is upheld, the faithless elector’s vote is discarded.

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Given that the Republicans control the House and the Senate in the next Congress,  an unlikely possible outcome would be that enough faithless electors put Trump’s tally below the 270 votes needed to win the Electoral College vote. In that case, the majority of House and Senate Republicans would invalidate those faithless votes, triggering a run-off contingent election in the House and Senate that Trump and Mike Pence would win.

Here is how the Constitutional process works:

1. On December 13, each state Governor must have a certificate of ascertainment finished. That document lists the names of the electors for each presidential and vice presidential candidate, and the number of votes received by each candidate.

2. On December 19, electors gather in each state and the federal district to cast their votes. Any disputes within the states about electors must settled by December 13. At each Electoral College voting sessions, the electors cast their committed votes for president and vice president. In 82 cases since 1787, electors at meetings became “faithless electors” when they voted for another candidate on their own.

3. At this point, each state Electoral College sends a certificate of vote to the Vice President of the United States Joe Biden, acting as president of the Senate. The certificates must be received by December 28 in Washington. The Office of the Federal Register determines the certificates are sealed and legitimate documents.

4. On January 6, 2017, Biden opens the joint session held in the House of Representatives at 1 p.m. Two sets of tellers open the sealed vote certificates in alphabetical order by state, and the results are read into the congressional records. After the results are announced, Biden then asks if there are objections from any member of Congress. Each objection must be made in writing and signed by one House and one Senate member.

5. If there are objections, the House and Senate meet separately, with a two-hour limit on the meetings. Each member can only speak for a maximum of five minutes. When the joint session resumes, the results of the meetings are announced. Both the Senate and the House must agree to reject an Electoral College vote or votes.

Under the 12th Amendment, if there is no majority winner in the Electoral College, the House picks the President and the Senate picks the Vice President in contingent elections. The top three Electoral College vote getters for President are put up for the vote in the House; the top two Vice Presidential candidates are voted on in the Senate.

There has been one election that was influenced by the faithless elector scenario. In 1836, while Martin Van Buren won the presidential election outright, nearly two dozen faithless electors refused to vote for Van Buren’s vice presidential running mate, Richard Mentor Johnson.  On February 9, 1837, Congress opened the vote certificates and confirmed that 23 electors in Virginia voted for another candidate, William Smith of Alabama. Johnson defeated the second-place finisher, Francis Granger, in the Senate run-off election.

Scott Bomboy is the editor in chief of the National Constitution Center.

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