Can the electors vote for Trump, despite the popular vote?

Each presidential election in the United States sparks a renewed debate about the electoral college and the appropriateness of this institution. This year, the debate is even more resonant, as Donald Trump does not recognize the vote count, and many are wondering whether the electoral college can make him president, voting against the will of the majority of the state's voters. Let's figure it out!

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Most Democratic presidential candidates favor abolishing the Electoral College and want the candidate who receives the majority of the popular vote to become president. Their motives are easy to understand - the Democrats have won the popular vote in 7 of the last 8 presidential elections (1992, 1996, 2000, 2008, 2012, 2016, 2020), and the White House has not always been controlled only due to the indirect electoral system and distribution of votes electors in favor of the Republican candidate.

But it's one thing for the candidate who lost the popular vote to win the election because he was able to win states with more electors. And it’s completely different if the electors simply “change their minds” and vote not for the candidate who won in the region.

Who are the electors and can they vote as they please

In most states, electors are chosen at conventions by the state party committee or members of the party leadership. Each party chooses the full number of electors the state has. That is, for example, in California, both the Democratic and Republican parties choose 55 electors. They are chosen over a long period of time, from the start of the presidential election year to the weeks leading up to voters' voting day.

And although their names are not on the ballots, these are the people you vote for when you check the box next to the name of one of the presidential candidates. Representatives of only the party whose candidate won the region will go to the meeting of the electoral college from the state. That is, in California, based on the results of voting in the 2020 elections, the Republican electors will stay at home, and only 55 Democrats will go to the board meeting.

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But can they vote as they please? The US Constitution does not oblige electors to vote for the candidate who won the popular vote in their state, but “turncoats” are rare, writes The news tribune.

Electors usually hold leadership positions in their party or were chosen in recognition of their years of faithful service to the party, so they rarely vote "the wrong way."

Electors vote for who won the state's popular vote about 99 percent of the time. Over the past century, only 19 electors refused to be guided by the results of the universal suffrage, voting "according to conscience" for the candidate they liked.

Remarkably, 10 out of 19 did (or tried to do) this in 2016. Moreover, the “wrong” electors never changed the outcome of the elections.

Thirty-two states and the District of Columbia have laws that require electors to vote for the winner of the popular vote. However, in 32 of these states and the District of Columbia, there are no legal consequences for defective electors for violating this statutory duty. In 19 of these states, the ineligible vote is voided, the elector's office is considered vacant, and a new elector is appointed to replace the "infidel." And in four of those states (including two from the group that voids the vote and removes the “faithless” elector), voting for the wrong candidate is punishable by prosecution or a fine.

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But until 2016, no elector in US history was fined or replaced.

"Wrong" electors

In Washington state, in 2016, three so-called invalid electors voted for Colin Powell to replace Hillary Clinton, violating a state's obligation to vote for the candidate with the most votes. The state fined them for disobedience, and they appealed the decision. But in May 2019, the Washington Supreme Court upheld the fines, ruling that the constitution gives the state the power to impose financial fines on electors who break their promises. Brennan Center.

In Colorado, the Democrat elector also violated his obligation to vote for Clinton, the candidate chosen by voters in that state. As a result, the elector was removed from office and replaced by those who voted for Clinton. In this case, the US Court of Appeals for the Tenth Circuit ruled against the state, ruling that it lacked constitutional authority to replace “invalid” electors.

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Losers in both trials have petitioned the Supreme Court to hear their case, potentially setting the stage for the first major US presidential decision.

How a candidate loses a popular vote but wins an election

Five times in U.S. history, a candidate has lost the popular vote but won the presidency—most recently in 2016. Could Donald Trump be the first to do it twice?

• 1824 year: Andrew Jackson received a majority of popular and electoral votes, but did not receive the minimum limit of electoral votes established at that time to be elected president. Therefore, the election of the head of state passed to the House of Representatives. There were three other candidates in the election - John Quincy Adams, William Crawford and Henry Clay. Clay supported Adams, thereby cementing his victory, in exchange for the post of Secretary of State. Angered by this "corrupt deal," Jackson resigned from the Senate and ran for president again in 1828. This time he won easily.
• 1876 year: Democrat Samuel Tilden received 200 votes more than Republican Rutherford Hayes. But he needed 000 Electoral College votes to win, and he only had 185 to Hayes' 184. 165 votes in Florida, Louisiana, Oregon and South Carolina were contested. Congress established a commission composed of representatives from both sides to determine the winner. On March 20, three days before the inauguration, they chose Hayes, a compromise that Democrats agreed to in exchange for a promise to withdraw federal troops from the South and end Reconstruction.
• 1888 year: The campaign was riddled with corruption, including allegations that votes were bought and black votes were not counted. It all ended with Democratic President Grover Cleveland winning the popular vote, gaining 90 votes more than Republican Benjamin Harrison, but losing in the Electoral College - 000 votes to 233. Cleveland still won the post, but in the next presidential election.
• 2000 year: Republican George W. Bush lost the popular vote to Democrat Al Gore by more than 500 votes. The Electoral College vote hinged on Florida, where a recount has devolved into legal disputes over markings on individual ballots. On December 000, the US Supreme Court stopped the recount of votes in the state, giving the victory to Bush. Bush received 12 electoral votes, Gore 271.
• 2016 year: Trump won the Electoral College, 304 votes to 227 for Hillary Clinton, but lost the popular vote by 2,8 million.

What could go wrong in 2020

Much, if there is no clear winner. The strong polarization of the electorate has given rise to many scenarios, as a result of which elections could go to the House of Representatives. The lack of sanctions against “wrong” electors in most states, as well as the unequal obligations of state legislatures and executive bodies to enforce existing laws, can play into the hands of any candidate, writes Brookings.

Leaders of the legislatures of several swing states with Republican majorities, using their constitutional powers, can approve alternative slates of electors, thereby creating a voting conflict with the "faithful" electors certified by the state executives. How the battles for competing electoral lists unfold during the vote count may depend in part on which party controls the newly elected House and Senate.

This could happen in key states such as Pennsylvania, where the governor is a Democrat and the legislature is controlled by Republicans. Legislatures may require, for example, voter re-voting, citing fraud, resulting in certified state electors will lose the right to vote. Or they may argue that the vote count is too slow to allow the state to meet the December deadline (certifying results by December 8, electoral college meeting December 14). Undoubtedly, legal battles will begin.

Even if a winning state candidate is identified and electors are appointed, the electors themselves may break their promises to vote for that candidate. Usually the “wrong” electors do not influence the outcome of the elections. But, if the number of votes is distributed approximately equally, for example 269-269, it is quite possible that the “wrong” electors will be of key importance.

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In 2020, the presence of a large number of “wrong” electors in a closed college vote could change the obvious winner or send elections to the House of Representatives.

"Wrong" electors sometimes deliberately vote so that elections go to the House of Representatives.

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