Thanks to the arcane Electoral College system in the United States, Donald Trump who appears to have won the majority of Electoral College votes may yet find himself locked out of the Oval Office. For those of my readers who live outside of the United States who have trouble enough understanding the concept of the "Electoral College" and how it relates to getting oneself elected president, here is a brief explanation about the "faithless elector" and how it has been used throughout American history.
When the United States was formed, the founding fathers established the Electoral College as a compromise between electing the president by a vote in Congress and electing the president by a popular vote of the citizens of the United States. According to the National Archives and Records Administration, over the past 200 years, there have been over 700 proposals introduced in Congress to either eliminate or reform the Electoral College; given that an amendment to the Constitution must be proposed by a two-thirds majority in both houses of Congress and ratified by three-quarters of states, any changes are highly unlikely despite the fact that public opinion polls show that 75 percent of Americans favoured abolishing the Electoral College in 1981.
Each state has been granted a number of Electoral College votes as shown on this map:
Here's what the 2016 Electoral map looks like:
It is important to keep in mind that the president is not chosen by the percentage of votes that they receive on a nationwide basis, rather, the president is elected by the basis of the popular vote in each state in 48 out of 50 states. That is, the candidate that gets the most votes in a state takes all of the Electoral votes (winner takes all). Two states, Nebraska and Maine do not follow this rule; in these cases, there could be a split of Electoral votes based on the proportion of the total number of votes received.
For your illumination, here's what the Electoral College votes looked like for the 2012 presidential election:
What qualifies a person to be an Elector and how are they selected? First, the Constitution provides very little information about the qualifications required, however, no Senator or Representative is allowed nor any person who holds and Office of Trust or Profit under the United States. As well, state officials who have engaged in any insurrection or rebellion against the United States or given aid to their enemies are allowed to serve as Electors (think the post-Civil War era). The Electors are selected in a two part process:
1.) the political parties in each state controls the slate of Electors and select the Electors either at their state party conventions or by a vote of the party's central committee. Electors are often selected because they have personal or political connections to their party's presidential candidate or because they have served on the state level of their political party.
2.) on election day, when voters in each state cast votes for the presidential candidate, they are voting to select their state's Electors whose name may or may not appear on the ballot. The winning presidential candidate's slate of potential Electors are then appointed as the state's Electors except in the cases of Nebraska and Maine where, as I mentioned above, the Electors are selected based on their proportion of the vote.
The key to the whole Electoral College issue, particularly in the latest election cycle, is based on the fact that there is no federal law or Constitutional provision that requires Electors to vote according to the results of the popular vote in their state (i.e. according to their pledge), however, in some cases, state law requires that Electors cast their votes according to the winner of the popular vote. Since the Supreme Court has held that the Constitution does not require the Electors be free to act as they choose, political parties are allowed to require that their Electors pledge to vote for their parties' nominees. Those who do not follow their pledge are called "faithless Electors"; these Electors who break their pledge may be subject to monetary fines or may be disqualified for casting an invalid vote and replaces with a substitute Elector with the penalties varying from state-to-state as shown here:
In total, 21 states do not require their Electors to vote for their party's designated candidate.
So far in history, no Faithless Elector has been penalized for voting against their pledge although there have been a number of recent examples as shown here:
1.) 2004 - Anonymous (Democrat, Minnesota)
An unknown elector from Minnesota, pledged to vote for Democrat John Kerry, cast a presidential vote instead for Kerry’s running mate John Edwards (the elector also cast his or her vice presidential vote for Edwards). One Minnesota elector, who believed the Edwards vote must have been a mistake, said, "I'm certainly glad the Electoral College isn't separated by one vote."
2.) 2000 - Barbara Lett-Simmons (Democrat, District of Columbia)
Barbara Lett-Simmons, a Democratic elector from the District of Columbia, did not cast her vote in order to protest the lack of congressional representation for Washington, DC. Lett-Simmons was the first elector to abstain from voting since 1832. Her abstention did not affect the outcome of the election.
3.) 1988 - Margaret Leach (Democrat, West Virginia)
Margaret Leach, a nurse from Huntington, WV, was pledged to the Democratic Party. During the Electoral College process, Leach learned that members of the Electoral College were not required to vote for the candidates to whom they were pledged, whereupon she decided to draw more attention to the situation by switching her votes for president and vice president. She cast her presidential vote for Lloyd Bentsen, the Democratic Vice Presidential candidate, and cast her vice presidential vote for Michael Dukakis, the Democratic presidential candidate. Leach tried to get other electors to join her, but hers remained the only unexpected vote.
4.) 1976 - Mike Padden (Republican, Washington)
Mike Padden, a lawyer from Spokane, WA, was pledged to vote for Gerald Ford, the 1976 Republican candidate for president. Instead Padden voted for Ronald Reagan, who had run in the Republican primary and lost. For vice president he voted for Robert Dole, Gerald Ford's running mate.
5.) 1972 - Roger L. MacBride (Republican, Virginia)
Roger L. MacBride was pledged to the Republican party of Virginia. However, in the 1972 election, MacBride did not cast his electoral vote for Richard Nixon, the Republican presidential candidate, but for John Hospers, the Libertarian presidential candidate. He also cast his vice presidential vote for Toni Nathan, the Libertarian vice presidential candidate, (making Nathan the first woman to receive an electoral vote). MacBride ran as the Libertarian candidate for president in the next election but did not receive any electoral votes.
6.) 1968 - Dr. Lloyd W. Bailey (Republican, North Carolina)
Dr. Lloyd W. Bailey was an elector for the Republican Party of North Carolina. He did not vote for Richard Nixon however, but for George Wallace, the presidential candidate for the American Independence Party. (Wallace received a total of 46 electoral votes). Bailey claimed that Nixon had done some things that displeased him (like appointing Henry Kissinger and Daniel Moynihan) and so he decided not to vote for him. He also protested that he had never signed a pledge promising to vote for any particular candidate and that his vote for Wallace was justified because Wallace was the winner in Bailey’s district. Bailey later admitted at a Senate hearing that he would have voted for Richard Nixon if his vote would have altered the outcome of the election.
7.) 1960 - Henry D. Irwin (Republican, Oklahoma)
Henry D. Irwin, a Republican elector from Oklahoma, was originally pledged to Richard Nixon. Irwin later admitted in an interview with CBS that he "could not stomach" Nixon. He tried to convince the Democratic and Republican electors to reject both Kennedy and Nixon as presidential candidates. His choice replacement was a combination of two conservative senators: Harry F. Byrd of Virginia and Barry Goldwater of Arizona. In fact, he sent out telegrams to the other electors. One telegram sent to the 218 Republican electors read:
"I am Oklahoma Republican elector. The Republican electors cannot deny the election to Kennedy. Sufficient conservative Democratic electors available to deny labor Socialist nominee. Would you consider Byrd President, Goldwater Vice President, or wire any acceptable substitute. All replies strict confidence."
Irwin received several replies (about 40) from other electors but he was the only one to vote against his designated party. He cast his electoral votes for Byrd and Goldwater. In the same election 14 unpledged electors (eight from Mississippi and six from Alabama) cast their presidential votes for Harry Byrd. All 14 also voted for Senator Strom Thurmond of South Carolina as vice president.
8.) 1956 - W. F. Turner (Democrat, Alabama)
W.F. Turner, a Democratic elector from Alabama, voted for Walter Burgwyn Jones instead of the Democratic candidate Adlai Stevenson. Jones was formerly a circuit court judge from Turner’s hometown.
In the 1912 election, there were eight Republican faithless Electors, in the 1872 election, there were a whopping sixty-three Democratic faithless Electors, in the 1836 election, there were twenty-three Democratic faithless Electors and in the 1832 election, there were thirty-two Democratic faithless Electors. The first appearance of a faithless Elector took place in 1796 when Samuel Miles broke his pledge to vote for Federalist candidate John Adams, voting for Democrat-Republican Thomas Jefferson who still lost the election by three Electoral votes.
In total, since the founding of the Electoral College, there have been 157 faithless Electors with 71 of these resulting because the original presidential candidate died before the day on which the Electoral College cast its vote. Even with all of these Electoral shenanigans, no Elector has changed the outcome of an election by voting against their party's designated candidate.
Given that this petition has recently appeared on the Change.org website:
...and the history of the Electoral College and its rather meagre contingent of faithless Electors, I would suspect that the odds that the Electors will ignore their state's vote and cast their ballot for Hillary Clinton is somewhere between slim and nil. The Constitutional and civil uproar that would occur would likely be comparable to what happened in the United States in the early 1860s. As well, the odds that Congress will ever change the Electoral College system is equally remote.