Could 'faithless electors' undermine the Electoral College?

In many states, Electoral College voters are not required by law to vote for the presidential candidate who won the popular vote in their state. While it is unlikely that enough 'faithless electors' will vote against Donald Trump, the possibility has caused voters to learn more about the electoral process.

On Nov. 8, 2016, Republican candidate Donald Trump won the presidential election with 290 Electoral College votes over Democratic presidential candidate Hillary Clinton's 232 Electoral College votes. 

But despite President-elect Trump's victory in the Electoral College, Mrs. Clinton currently has slim but growing lead in the popular vote, with 1.7 million more votes than the Republican candidate as of Monday morning. That's a larger margin of popular votes than those carried by some winning presidential candidates, and has led to renewed support among Democrats to call for the end of the 228-year-old Electoral College.

In response, some Democratic electors have banded together in hopes of eliminating the Trump majority before the electors officially cast their ballots in December. The plan is to convince electors from red states to vote against the Republican candidate in a last-ditch effort to keep the controversial president-elect from getting into the White House. While it is not likely that this attempt will succeed, the undermining of the basic structure of the Electoral College may spell the beginning of the end for one of the United State's most controversial institutions.

The plan hinges on so-called "faithless electors," members of the Electoral College who vote against the candidate who won the majority in their particular state. During the US presidential race, Americans do not vote directly for their preferred candidate. In reality, the ballots they cast go to electors, who then go on to theoretically cast a vote on their behalf.

"Electors were considered preferable to the popular vote because the [Founding Fathers] distrusted mass democracy, and hoped that the electors would select men with the proper judgment and background," Thomas Schwartz, professor of history and political science at Vanderbilt University in Nashville, Tenn., tells The Christian Science Monitor in an email. "They were steeped in classical history of Greece and Rome, and saw the danger of popular demagogues. And they were wealthy men who feared the mob taking their property. A mix of motivations, both selfish and commendable."

But while electors are not actually required by federal law to vote for the candidate who wins the popular vote in their particular state, many states do require that the elector cast a vote based on the popular victor in that state, regardless of the winner of the countrywide popular vote. Electors are also frequently bound by oaths to stick to their respective parties, and some states can fine or invalidate the vote of those who do not vote as promised.

Despite these restrictions, 157 faithless electors have voted contrary to their pledged positions in the past, though the practice is rare. The closest faithless electors have ever gotten to actually overturning an election happened in 1836, when 23 Virginia delegates refused to vote for the Democratic vice presidential candidate, Richard Johnson, because he had a common law life who was also a slave, causing him him to lose the majority of electoral votes. But the presidential candidate, Martin Van Buren, was unaffected by the abstention, and the Senate, which takes up responsibility to select the present in the event of a failure of the electoral college, voted along party lines to allow Johnson to be his vice president anyway.

Even if Trump lost the Electoral College in December, the Republican-controlled House would likely appoint him president. But for the faithless electors of this election, it's not just about stopping Trump, but about undermining, and eventually destroying, the college completely.

"If it gets into the House, the controversy and the uncertainty that would immediately blow up into a political firestorm in the US would cause enough people – my hope is – to look at the whole concept of the Electoral College," an anonymous anti-Trump elector told Politico.

There have only been four times in US history when a president was elected without the popular vote: twice in the 19th century and twice in the 21st, with Al Gore most recently losing to George W. Bush in 2000. Todd Curry, associate professor of political science at the University of Texas at El Paso, explains in an email to the Monitor why both instances put Democrats on the losing side:

States with a large number of Electoral College votes have them because of large population centers within their states: major cities. These areas, because of a variety of reasons including diversity, higher education levels, and ideology, tend to vote predominantly Democratic. Areas with smaller populations, which are more rural and less diverse, tend to vote Republican. Because of the way the Electoral College works, this magnifies the vote of the Republican Party, as individual votes in those smaller states, like North Dakota for example, count significantly more in the Electoral College. Because of this, Democratic candidates can win the popular vote while only winning a small number of states, but lose the Electoral College vote because votes in smaller states count more when aggregating to the Electoral College.

Because of the advantage of the Electoral College going to the party in power, it makes it difficult for the losing side to change the system until it benefits them again, during which they are less inclined to do anything about it. Currently, the most organized way for faithless electors to undermine the college is the National Popular Vote Interstate Compact, which would require each state legislature to give away its electoral votes to the winner of the national popular vote. So far, only a small number of blue states have signed up.

"The only way that the Electoral College will change is through constitutional amendment, and that is a non-starter in many states," Professor Curry writes. "In order to abolish the Electoral College, the political landscape of the United States would need to change."