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Opinion: If No One Else Stops Trump, The Electoral College Still Can – It’s In The Constitution


truDonald Trump will be the GOP’s presidential nominee. Within the party, talk of a brokered Republican National Convention or even a supporting a third-party candidate has circulated among those hoping to stop him from becoming the next president, leaving Trump antagonists across the spectrum to ponder whether there’s any fail-safe left, after November, to stop a Trump administration from becoming a reality.

There is. The Electoral College.

If they choose, state legislators can appoint presidential electors themselves this November, rather than leaving the matter of apportioning Electoral College votes by popular vote. Then, via their chosen electors, legislatures could elect any presidential candidate they prefer, no matter who wins the majority vote in their respective states.

Remember that Americans don’t directly elect the president. The Electoral College does: Slates of electors pledged to support presidential and vice presidential candidates are voted upon in each state every four years. Each state, and the District of Columbia, is apportioned at least three of the 538 electors, allocated by the total number of U.S. Senators and Representatives each state has.

In December, these electors will gather in their respective states and cast votes for president and vice president. And in January, Congress counts these votes, determines if a candidate has achieved a majority – at least 270 votes – and then certifies a winner.

We take it for granted that the individual votes we cast will be the ones that select the slate of presidential electors in our state. But the Constitution makes no such guarantee. In fact, it says the states appoint electors “in such Manner as the Legislature thereof may direct.”

Some founders worried that rash decision-making by the collective body politic would be “radically vicious” or “liable to deceptions” if they directly elected the president, for the people would lack the “capacity to judge” candidates. While members of the House of Representatives would be accountable directly to the people, presidential elections would occur indirectly. Electors, not the people, would elect the president. And state legislatures could decide how. (Most states now have laws binding electors to vote for the candidate who wins their state’s popular vote – but many states don’t.)

In the earliest presidential elections, many states did not have popular elections for electors. Their legislatures simply chose electors. Over time, states gradually moved toward the popular elections we now take for granted.

But state legislatures have occasionally retained the power for themselves. In 1876, for instance, the new state of Colorado opted not to hold a popular election for electors, with the legislature claiming publicly that it lacked sufficient time to organize an election. It’s more likely that Republican legislators worried that the people would vote for three Democratic electors and move to end Reconstruction in a closely contested election. The state legislature chose to retain the power to choose electors for itself – just that one time.

And state legislatures have modified the rules for the selection of presidential electors when they worry that the people of the state will vote for a disfavored candidate. In 1892, for instance, Democrats gained control of the Michigan legislature. They decided that presidential electors should be appointed according to popular vote totals in each congressional district, as opposed to the statewide winner-take-all system that had previously existed. Michiganders had consistently voted for a slate of Republican electors in the recent past, and the move to elections by district guaranteed that Democrats would win at least a few of electoral votes.

State legislatures should consider whether to retake this authority in the 2016 election in an effort to stop Trump. Republicans control 31 state legislatures. Many could consider this proposal, but the Texas state legislature is a natural place to start. It could easily pass a law returning power to the legislature. After Election Day, the legislature could decide whether to vote for Trump or Mitt Romney, the prior Republican nominee; former Texas Gov. Rick Perry, who dropped out of the 2016 race early on; a popular GOP figure like Condoleezza Rice, whose name has recently been floated as an alternative; or their own junior Sen. Ted Cruz, presently trailing Trump in the Republican Party delegate count.

Texas’ 38 red-state electoral votes are almost assuredly required for any Republican to get the 270 electoral votes needed to win. Casting them for someone other than Trump doesn’t help likely Democratic nominee Hillary Clinton, because she also needs 270. So while one state’s electoral votes may not seem like much, it might be enough to deprive either candidate a majority.

And in the event no candidate wins a majority of the electoral votes, the House of Representatives selects the winner. Each state’s delegation of representatives gets one vote and selects among the top three electoral vote-getters-which would include the candidate who receives Texas’s 38 votes. Republicans control these House delegations, and they could select from Trump, Clinton and Texas’s preferred non-Trump candidate.

The decision need not rest with a single state, of course. Many state legislatures may worry about voters choosing between Trump and Clinton. It’d be a long shot, to be sure, but if enough state legislatures voted for their own electors this year, they could collectively secure the 270 electoral votes for their preferred candidate, which may not be either of these two candidates.

To take this extraordinary step, state legislators would have to decide that this election calls for an extraordinary change. And, of course, acknowledge that it could be deployed against any candidate in any presidential election – this year, four years from now and onward. It has seldom been used. But perhaps – just this once – legislators will conclude that the times call for a change to how we vote for the president.

Clearly, Trump supporters and, potentially, anyone who sees this sort of procedural move as a dirty trick, would object to this as antidemocratic. But voters’ preferences would still be reflected – albeit indirectly – in the decisions made by the state legislatures, whose members are elected by the people. And the existence of the Electoral College, no matter how electors are chosen, means that the people, technically, have already been indirectly selecting their presidents.

Trump hasn’t won yet. But it is increasingly likely that we will reach precisely the kind of scenario that the founders worried about – divisive political discourse threatens to thrust a dangerous candidate into office who appears inclined to govern more like a monarch than a president. Opportunities remain for cooler heads to prevail in our presidential election. And state legislatures should consider doing so this year.

Special To The Washington Post · Derek T. Muller



12 Responses

  1. So in other words Muslim Obama wants to take control of the voters …and pick presidents like the Muslim do .. Why didn’t we do that for Obama ????? can you step aside and let Americans practice there freedom …

  2. I DON’T GET IT! so many loud voices are frightened by the prospect of “president TRUMP.BUT HOW DO THEY EXPLAIN THE VERY FACT THAT HE HAS WON SO MANY STATES IN THE PRIMARIES?? WHO PICKED HIM OVER OTHER FINE CANDIDATES? RETARDS? MORONS? ARE WE SAYING THAT MILLIONS OF AMERICANS ARE TOTALLY STUPID AND WE SMART ONES MUST RALLY TO STOP THEM?

  3. Well in theory this could happen. But the storm unleashed would be frightening. Anyone remember 1975 when the Australian Governor General sacked Prime Minister Gough Whitlam? I don’t think that will ever happen again. Canada’s GG suspended parliament to avoid a vote of no confidence. These kind of things are a one-chance only-if-ever option. No British monarch would veto a law these days, but the option remains. Using it would destroy the monarchy even if it saved the country from some crazy law. If the Supreme Court is tied and the new president’s election contested, the whole system would be in real danger.

  4. Was this guy born yesterday? Does he realize what kind of political suicide it would be for state legislators to force electors to vote contrary to what a majority of the state’s population voted for?

  5. Izzyg: If you doubt that most people are idiots, then I must conclude that you don’t get out much. Tavo Alecha brachah, if so, but it is the sad truth.

  6. To answer izzyg: millions of people are not retards, they are intelligent people who allowed their yetzer hara to overcome them. I have no other explanation to the way people prefer to ignore and or excuse Trump’s bad behavior. Just recently I heard Rush Limbaugh criticizing an ad that attacked Trump for the undisputed obscene way he talks about women he does not like. Get this:insisting on BASIC manners is now relegated to being liberal, something Democrats do to shut up “normal male behavior”. Well, if obscenity comes with being Republican nowadays, then count me out!

  7. The author is proposing a scenario in which the American people elect Trump, and various politicans conspire to keep the elected president from taking office. That is what is generally referred to as a “putsch” and it wouldn’t work. Like it or not, democracy (small “D”) is deeply ingrained in the American people.

  8. divisive political discourse threatens to thrust a dangerous candidate into office who appears inclined to govern more like a monarch than a president. This description sounds to me to be no other than Obama.

  9. #3,Yes. This exactly what the founding fathers were worried about — the rabble electing Trump. Re-read the article, especially the last part.

  10. absan, where in the article does it mention modern-day Democrats at all? Is everything an Obama plot?

    Yes, izzyg, there are a lot more Archie Bunkers out there than I’d imagined. You just have to look at popular culture (e.g. reality TV shows) to realize that there are millions of stupid people in the United States.

  11. After millions of Germans followed Hitler, after so many Poles, Ukrainians, etc. collaborated in the Holocaust, how can anyone doubt that millions of people can be wrong?

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