I know. It’s been over a month since Election Day, and yet we are still talking about the 2016 presidential election. With the prospect of voting for two broadly unpopular candidates, many voters just wanted the election to be over on November 8.
But here we are. Still talking about election recounts, hacked DNC emails, and the possibility that some Republican electors may ditch President-elect Donald Trump on December 19. In truth, the election is not over. It is not officially over until the 538 members of the Electoral College cast their ballots and Congress certifies the electoral vote in January.
It is important to remember that in a presidential general election, voters don’t really elect the next president. They are electing representatives chosen by the Republican and Democratic Parties to vote for the president on their behalf. In most cases, electors go along with the popular vote in his or her state. But they do not have to in some states.
They are called faithless electors — rogue electors, one might say. There are 29 states plus the District of Columbia that have laws requiring electors to remain faithful to the state’s popular vote. But in the remaining states, electors are supposedly allowed to put their conscience above the vote of the people in their state if they wanted to.
It is extremely rare that even in a state that doesn’t explicitly forbid faithless electors that an elector will go against the will of the people. According to FairVote, there have been a total of 157 faithless electors since the founding of the Electoral College, 82 of whom changed their vote out of personal initiative and not because the candidate died or the elector abstained from voting.
It is important to remember that in a presidential general election, voters don't really elect the next president.
So if it is so rare, why are we talking about it? Well, there is a chance we could see a handful of electors change their vote on December 19 — though it is doubtful it will be anywhere close to changing the results. And even if it somehow did, there are other constitutional and institutional barriers that would squash such a rebellion before the election is officially over.
The exact number of current rogue electors is difficult to pin down. It falls somewhere between one and 20 at the moment, depending on who people wish to believe. Given the type of election it has been, it seems almost certain that the current electoral count will not match up perfectly with the final electoral vote.
However, for those hoping a Hamilton elector rebellion will save the country from 4 years of Trump, there is one factor that practically ensures any effort to unite behind such a scheme is dead on arrival: party loyalty. Not loyalty to voters, but loyalty to party.
Remember, state Republican and Democratic parties choose the electors. They submit a list of people they have determined to be “qualified” for the job to their state’s secretary of state and electors are chosen from the winning party’s list since nearly every state is winner take all.
The number one factor that determines who is and isn’t qualified is loyalty to party first. That’s why electors are often current or former party officials and elected representatives at local and state levels.
The Hamilton elector is the proverbial pot of gold at the end of the rainbow. The idea that some might emerge is enticing to chase, but sooner or later reality will catch up. The Electoral College has strayed far from the original intent of the Founding Fathers.
In Federalist #68, Alexander Hamilton said electors should be “free from any sinister bias.”
“They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment.” – Federalist Paper #68
READ MORE: 10 Ways Political Parties Control Your Vote
Yet, electors are chosen based on their perceived loyalty to a private political corporation — not based on their knowledge of the candidates, the system, or their commitment to serve the best interests of voters. In some cases, even in states that don’t explicitly forbid faithless electors, the Republican and Democratic parties require electors to pledge that they will vote for the party’s nominee.
That is how much control the political parties have on the election process, and they even keep close tabs and whip electoral votes when they think some electors might go rogue.
Even if enough electors rejected Trump, electoral votes have to be certified first by a state’s secretary of state (which means electoral votes that — say — violate a faithful elector law would likely be tossed), and then the results have to be certified by a joint-session of a Republican-controlled Congress. If just one senator and one House member objects in writing to the announced vote, both chambers split to debate the issue. At this point, it seems pretty clear how the story ends.
It has been a crazy election with an ending no one in the media or academia predicted. But as unpredictable as 2016 has been, it is not likely to end on one last plot twist.
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