What if? A look at the Elec­toral Col­lege, rogue elec­tors

Malta Independent - - US ELECTION - Mary Clare Jalonick

If all goes smoothly, the Amer­i­can peo­ple will choose a new pres­i­dent on Tues­day, the Elec­toral Col­lege will af­firm the elec­tion next month and ei­ther Demo­crat Hil­lary Clin­ton or Repub­li­can Don­ald Trump will take the oath of of­fice on 20 Jan­uary.

But why as­sume ev­ery­thing will go smoothly in an elec­tion year that al­ready has seen more than its share of surprises. What, for ex­am­ple, if some elec­tors refuse to vote for the can­di­date who won their state? What if the win­ner is sit­ting in a court­room in­stead of parad­ing in Wash­ing­ton?

The FBI is in­ves­ti­gat­ing new­ly­dis­cov­ered emails that might be re­lated to the dor­mant probe into Clin­ton’s use of a pri­vate email server. The fu­ture of that in­ves­ti­ga­tion is un­cer­tain, and there could be de­vel­op­ments af­ter the elec­tion.

On the Repub­li­can side, Trump faces un­re­solved cases in New York and Cal­i­for­nia re­lated to Trump Univer­sity, as well as nu­mer­ous other civil suits. He has also threat­ened to sue The New York Times over its pub­li­ca­tion of de­tails re­gard­ing his taxes.

Elec­tors who go rogue – called faith­less elec­tors – are rare and have never changed the re­sult of an elec­tion.

A look at the process:

Faith­less elec­tors

In the pres­i­den­tial con­test, Elec­tion Day vot­ers cast bal­lots for their state’s elec­tors, who are in turn ex­pected to cast votes for the pres­i­den­tial can­di­date who wins the most votes in their state. Ac­cord­ing to the Na­tional Ar­chives, 99 per cent of elec­tors through US his­tory have voted for the can­di­date who won their state.

Elec­tors are cho­sen by each party, and typ­i­cally are party in­sid­ers who can be trusted to vote for their can­di­date. But in many states, they aren’t legally re­quired to sup­port that per­son.

State laws vary

Twenty-one states don’t re­quire their elec­tors to go along with the pop­u­lar vote, ac­cord­ing to the Na­tional Con­fer­ence of State Leg­is­la­tures. The 29 states that re­quire faith­ful­ness from their elec­tors can im­pose a va­ri­ety of pu­n­ish­ments, in­clud­ing fines.

One elec­tor has al­ready said he won’t vote for Clin­ton, de­spite a fine. Robert Sa­ti­acum, a mem­ber of Wash­ing­ton’s Puyallup Tribe, says

he be­lieves Clin­ton is a “crim­i­nal” who doesn’t care enough about Amer­i­can In­di­ans and “she’s done noth­ing but flip back and forth“.

Sa­ti­acum faces a $1,000 fine in Wash­ing­ton if he doesn’t vote for Clin­ton, but he said he doesn’t care.

“She will not get my vote, pe­riod,” he told The As­so­ci­ated Press.

Ok­la­homa also imposes a fine, ac­cord­ing to NCSL. In South Car­olina, a faith­less elec­tor is sub­ject to crim­i­nal penal­ties.

“Apart from the state laws that at­tempt to cor­ral elec­tors, the the­ory is that the elec­tors can vote for any­one who is qual­i­fied to be pres­i­dent of the United States,” says con­sti­tu­tional law scholar Robert Ben­nett, an emer­i­tus pro­fes­sor at North­west­ern Univer­sity’s Pritzker School of Law.

Kick­ing it to Congress

There are 538 elec­tors, and the win­ner must re­ceive half of that plus one, or 270 elec­toral votes. If elec­tors split votes for some rea­son and no can­di­date re­ceived 270, the de­ci­sion is kicked to the House of Rep­re­sen­ta­tives.

Each state’s House del­e­ga­tion has one vote, and must pick from the top three can­di­dates who re­ceived the most elec­toral votes. The Se­nate de­cides the vice pres­i­den­tial con­test.

Congress’ role makes it less likely that Democrats, in par­tic­u­lar, would split the elec­toral vote, says John Hu­dak, a fel­low in gov­er­nance stud­ies at the Brook­ings In­sti­tu­tion. That’s be­cause there are more Repub­li­can states than Demo­cratic states, so a House vote would al­most cer­tainly pro­duce a Repub­li­can pres­i­dent.

“There is no in­cen­tive for any Demo­cratic elec­tor to vote for any­one else but Hil­lary Clin­ton,” Hu­dak says.

Dis­qual­i­fy­ing events

Even if there were any dam­ag­ing de­vel­op­ments in the re­view of the newly dis­cov­ered emails, the con­tent of which is still un­known, Clin­ton would still be able to as­sume the pres­i­dency if she wins and the Elec­toral Col­lege af­firms the re­sults.

If ei­ther Trump or Clin­ton were to die af­ter the elec­tion and be­fore the Elec­toral Col­lege votes, their elec­tors would be free to vote for some­one else. This hap­pened in 1872, when Ho­race Gree­ley died af­ter los­ing the elec­tion to Ulysses S. Grant and be­fore the elec­tors met. But it didn’t mat­ter be­cause Grant had swept the elec­tion.

It’s a long shot

Faith­less elec­tors are ex­tremely rare, and the sys­tem has gen­er­ally held up as in­tended. On four oc­ca­sions, a can­di­date has won the pop­u­lar vote and lost the elec­toral vote, in­clud­ing the 2000 race that Repub­li­can Ge­orge W. Bush even­tu­ally won over Vice Pres­i­dent Al Gore. Never has a faith­less elec­tor changed an elec­tion re­sult, and there have only been a hand­ful of them in the past 50 years. There hasn’t been an elec­toral tie in more than 150 years.

“We have not had to face some of th­ese un­usual con­tin­gen­cies, like a mass of elec­tors de­fect­ing,” says Thomas Neale, an Elec­toral Col­lege ex­pert who is also an elec­tions analyst for the Li­brary of Congress. “There’s a very high per­cent­age of suc­cess.”

In this 1 Novem­ber 2016 photo, a voter is re­flected in the glass frame of a poster while leav­ing a polling site in At­lanta, dur­ing early vot­ing ahead of Tues­day’s Elec­tion Day. If all goes smoothly, the Amer­i­can peo­ple will choose a new pres­i­dent on Tues­day, the Elec­toral Col­lege will af­firm the elec­tion and ei­ther Demo­crat Hil­lary Clin­ton or Repub­li­can Don­ald Trump will take the oath of of­fice on 20 Jan­uary Photo: David Gold­man/AP

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