Can The Electoral College Steal An Election?

Electoral_College_Map.png

Overview of the Electoral College, White states are “Faithless” and Red states are “Pledged”. See map below for detailed breakdown.

Between November 8 and December 19, no mater who wins on Election Day, the losing side can still wind up being president, and it all rests in the hands of the Electors. And at least three of the Electors, all GOP, say they are not casting their vote for Trump. 

This is the last way to steal an election, and it is constitutional, as it is the Elector and not the public who elects a president. We only get to say who we want, and its not binding.

Not many Americans really understands how the Electoral College works. What the are not being told by the media or either party is that regardless of the fact whether or not the election is rigged, and either Hillary Clinton or Donald J.Trump wins, there is still a way provided by the US Constitution that an election can be “legally stolen.”

And if it were to happen, the act itself will not create a constitutional crisis, because, it has been this way since the 1787 Constitutional Convention and upheld by a 1952 Supreme Court decision that it is “constitutional.” The aftermath and fallout if the election is stolen when the Electoral College votes will be short of devastating to our way of life.


How can the Electoral College steal an election?
Let’s first look at how the Electoral College works. Below the article I have provided more detailed information on this, so here are the basics.

Based on the most recent official census, each state is assigned a number of Electoral College votes based on both a state-based and population-based representation. The Constitution is clear on how this is calculated. In a nutshell, it is determined by adding the number of U.S. Senators and Congressmen each state has (Article II, Section 1, Clause 2 of the U.S. Constitution).

However, nowhere in the Constitution does it require the individual or even a whole group of Electors as they called, to honor the decision, or as it is called, the “pledge” made by both the people and its state on Election Day.

Simply put, any delegate of the Electoral College, may “constitutionally” change their vote for another candidate.

The Electoral voting is held within the boundaries of each state, all Electors in all 50 states and the District of Columbia meet on the same day, which in 2016 is December 19, they will cast their votes, place them in a packet, sign it and send it to Congress. When all the packets have been received, the vice-president, as the president of the Senate, before a joint session of Congress, usually within the first week of January, opens each state’s packet of electoral votes and counts them.

This is very important to what follows next. Up to this point, none of the voting that took place means anything. The only votes that count are the votes read and counted on the House floor by the vice-president before both the House and Senate members. Because it is at this point where if any of the Electoral delegates changed their vote, a different person can become the next president. 

Here is the part that will make it all clear. Here’s how the Electoral delegates in the Electoral College can steal an election.


Makeup of the Electoral College
There are two types of Electors: “Pledged Electors” and “Faithless Electors.”

A “Pledged Elector” is an elector who is obligated by law to vote as the state demands. This demand is the pledge the state makes to their citizens, and the state requires ALL of the Electors they select to also honor this pledge.

A “Faithless Elector” is a member of the Electoral College who decides to vote against who their state pledged to vote for. That is, they can vote for another candidate, or even fail to vote or choose to abstain.

Now, a “Pledged Elector” can constitutionally become a faithless elector only by breaking their pledge. Faithless or unpledged Electors, have no pledge to break.

What is important to remember is that for every state, there isn’t one delegate Elector. If a state has 29 Electoral votes, 29 delegates must be chosen as the Constitution requires, to vote in the Electoral College. 

It is at this point where a close race can be stolen. But how bad can this be?

Well, 21 of the 50 states are “Faithless Elector” states, which means there is a potential for many Elector delegates in the “Faithless states” who can change their vote without repercussions.  

 

This map shows the “Faithless” states (blue) and “Pledged” state (red). To prevent the Faithless from changing the outcome, a candidate must carry many if not all the Pledged states. (Illustration ©2016 By George McGinn)


In the map above, the Faithless Elector states are in white, where the Pledged Elector states are in red. The 21 Faithless Voter states make up 252 of the 538 total Electoral votes, or 47 percent of the Electoral votes. That’s a lot of votes that can be changed, and it wil not take many of them to have an impact on the election

Another thing to keep in mind is that during the voting on December 19, if a pledged Elector does change their vote, while most all of the 29 pledged states have made that act a criminal offense, the Supreme Court in a 1952 decision has made this act constitutional. 

This means when the vice-president reads and counts the votes before the joint session, nowhere in the Constitution does it give any legislator any power to disqualify or discount or even change that vote.


The Supreme Court Decision
The Supreme Court upheld a state’s right to force pledged delegates to vote the way their constituents voted, but only before the Electoral College votes. The high court has been quiet on whether a state can enact  laws charging Electors with a crime if a Pledged Elector changes their vote.

In ‪1952, The Supreme Court in Ray vs‬. Blair affirmed the state’s right, before the actual vote, to replace a delegate or Elector if they refused to vote as their state demands.

However, in the same decision, the Supreme Court said that it is not unconstitutional for a Pledged Elector to change their vote. The decision in part reads:

“However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, § 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional.”

What the Supreme Court said basically is that before the Electoral College starts voting, the state may prevent delegates from opposing them. Once the voting starts, there is nothing that the state can do. There is one state that has enacted rules where they can invalidate any vote that goes against their pledge, but this has yet to be enforced, and the law’s constitutionality has yet to be decided.

Since any number of Electoral delegates from any of the 21 “Faithless Elector” states can change their vote, And according to the Supreme Court, any “Pledged Elector” can exercise their constitutional rights under Article II Section can also change their vote, it becomes conceivable that the person elected by the people on Election Day can be denied the presidency.

Let’s look at the math. If candidate A wins over candidate B getting 270 Electoral Votes on Election Day, candidate B, in a two-party race, gets 266 Electoral Votes. Since 21 states do not require their Electors to vote as their public pledged, all you need is four Electors to vote for candidate B instead of A, and now candidate B has 270 Electoral votes when the vice-president counts them before the joint session of Congress.

 

Can it happen?
Yes, and in the most recent past it has. Up until now, Electoral delegates have changed their votes 187 times, and as recently as the 2000 and 2004 elections. 

And while many historians are correct in that there has never been an occasion where faithless voters have changed the outcome of an election, there is a recent case where one almost did.

In 2000, Republican candidate George W. Bush won the presidential election over Democratic candidate Al Gore in what history remembers as the “Recount” election. And while the count after Election Day were close, many don’t know how close Bush came to losing the presidency during the Electoral College voting.

After the November elections, Bush had 272 Electoral votes to Gore’s 266. The Electoral College then voted on December 18, 2000. District of Columbia Elector Barbara Lett-Simmons decided not to cast her vote in protest against D.C.’s lack of congressional representation. According to the Constitution, D.C., is allowed to vote as an independent state, but gets the same number of representatives or Electoral votes as the state with the lowest number of votes, which was three.

According to the Green Papers, in the joint session held on January 6, 2001, the Electoral ballots were counted, and Bush received 271 Electoral votes, Gore with 266, and one abstention.

Since Bush still held the majority of Electoral votes, he was elected as the next president. Had two other Electors changed their vote on December 18, 2000 from Bush to Gore, or abstained their vote for Bush, then Bush would not have had the majority of Electoral College votes, and then the Senate and House, as prescribed by the Constitution (see footnotes for the procedures), would have had to select the next president, and possibly the vice-president as well.
 

Conclusion
This shows how fragile the Electoral College really is. As in 2000 when Bush came just 2 votes closer to possibly losing the presidency, I believe that the Electoral College system is vulnerable to either fraud or a protests from many “Faithless Electors” where the outcome could very well be impacted.

Already stories are being written where even a Republican from one of the Faithless states, Georgia, has already stated that he will withhold his vote if Donald Trump wins the election November 8 (see “How a ‘faithless elector’ in Georgia could cost Donald Trump an electoral college vote” in the August 3, 2016 Washington Post). 

One reason I say this is, even though the Electors will come from the party that won each state, both candidates have very high unapproval ratings, and both have had revolts within their on parties. I would not trust any party member appointed to the Electoral Collage to keep any party loyalties. They haven’t all election, so why start now? (See New York Magazine’s August 8, 2016 article “Could Faithless Electors Dump Trump”)

And there is a third GOP official, currently an Elector in Texas, who also will not vote for Trump if he wins. (See the August 26 article, “Faithless: This Texas Electoral May Not Vote For Trump” on 270ToWin)

If you say, well, the party’s censuring of the Elector is worse than criminal charges, I have to ask: Has any party member been censured for abandoning their party’s presidential nominee? No. 

The 2016 campaigns already are the strangest in the history of presidential elections. Things have happened, such as exposing hacked emails and FBI investigations, and more dirt slung than in any race in American history. 

Even today’s scandals that if occurred in past elections would have caused the removal or resignation of a candidate, has only propelled their poll numbers. It is as if both candidates are wearing teflon – nothing sticks, and none of what has been proven or alleged has deterred them.

Trump with his wild statements and accusations against him of sexism, racism, and his public attacks on Muslims, handicapped, veterans, the Pope, only endear him more with the people. And Clinton with an unprecedented number of active federal investigations into alleged abuse of power while at the State Department, including violating national security, allegations of trading our country’s security for money and favors to foreign states that are enemies to us, including RICO level offenses and actions bordering on treason, hasn’t hurt hurt her either. Both are 1 or 2 points from winning or losing the election on November 8.

However, what would happen if this election does come down to a difference of one to four Electoral votes? Could Elector delegates secretly conspire to either remove or put their candidate in the White House?

As I have shown above, some are not keeping it a secret on how they feel about their party’s candidate. The party can request the state to remove these Electors, but must do so before December 19 2016.

And with both proven charges of election fraud (such as the collusion against Senator Bernie Sanders in the Democratic Primary), the record number of arrests of poll workers allegedly ripping up Trump ballots, submitting ballots for dead people, and one poll worker filling out blank spots left by voters; campaign heads admitting to staging protests geared towards a violent end, and the alleged charges currently waged by both candidates, I now believe that the election of our president may be chosen by the Electoral College more so than in any other election.

Because while some Republicans haven’t kept how they will cast their Electoral vote, Hillary Clinton may also face a similar fate. If she wins, the Faithless voters may decide she’s too corrupt, or they fear a continuation of the alleged organized criminal activity of her foundation.

Before 2016 I would have said that no way could a candidate or a group of Electors conspire to steal the Electoral College. It may be theoretical, but due to who makes up the Electoral College, no one would go against their party. Even when Bush came close to loosing the majority vote, it wasn’t a conspiracy against him, it was a lone Elector protesting. 

And while the states take great pains in vetting all their delegates, most of them come from the winning party, who will vote on December 19. But Once the voting starts, according to the Supreme Court decision in Ray vs. Blair in 1952, the state no longer in charge and has no say in the outcome, and I predict we will see a change in how the Electoral College can also be used as a tool to deny or give away the presidency, regardless of any public voting or pledges made by the states.

I fear it is as real a possibility, based on the past actions, current statements made in the press, and proven and alleged acts by and against both candidates, that in a last ditch effort one could directly or indirectly affect the voting of the Electoral College. 

The act of an Elector changing their vote isn’t going to be a Constitutional crisis. It will be the aftermath and fallout if it does change the outcome of the presidency.

My fear is that this could, depending on how Americans react, plunge the country into anarchy, for this will be the ultimate betrayal to our democracy, and will collapse our government. 

However, there may be one move, and you are not going to like this one bit, and that is President Barack Obama could declare a state of emergency, decide to suspend habeas  corpus and the constitution under the emergency powers of FEMA and the National Security Act, and grab a third term for himself.

Like it or not, that may be the only way to preserve our way of life. Otherwise, the bloodless coup Seve Pieczenik claims is going on may not stay that way. And that is based on watching other countries fall apart.

 

More Information
I leave you with some links you may find useful in explaining in greater detail the Electoral College, voting rights of the state and individual, and read what our current laws say on the matter. 

 I also include some footnotes I used to help form my conclusions. 


Links:

Vote Smart – Government 101: Electoral College

Wikipedia: The Electoral College

Fair Vote: Faithless Voters

Wikipedia: Faithless Voters

History Channel: The Electoral College

The National Archives: Federal Register – Electoral College Home Page

US House of Representatives: Fast Facts on the Electoral College

US House of Representatives: The Electoral College & Indecisive Elections

Wikipedia: The Twelfth Amendment

Wikipedia: United States Presidential Eligibility Legislation

The National Archives: Transcript of the US Constitution

 


Footnotes:

Related legal basis of the article above:
 

1. U.S. Constitution. In Article II, Section 1, Clause 2 states: 
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
 

2. U.S. Constitution. Article II, Section 1 states:
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.
 

3. U.S. Constitution, Article II, Section 1 on procedure in selecting a president and vice-president:
The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse[sic] by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse[sic] the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
 

4. The Twelfth Amendment of the U.S. Constitution on the procedure of how the Electors are chosen:
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States. Electors are chosen on the “Tuesday following the first Monday in November, in the year before the president’s term is to expire.
 

5. The Twelfth Amendment of the U.S. Constitution on when the Electoral College is to meet, vote, submit ballots:
On the Monday following the second Wednesday in December is when the Electors in each state votes. The votes occurs in each state, and once the voting starts, this is when an elector can change the state’s vote. The packet of votes is signed and ratified, then sent to Washington where the vice-president, as the president of the Senate, in a joint session of Congress, opens each state’s packet of electoral votes and counts them.

 

Below is the entire text, as ratified, of the Twelfth Amendment. It reads in its entirety (Source: The National Archives):
 

AMENDMENT XII
Passed by Congress December 9, 1803. Ratified June 15, 1804.

Note: A portion of Article II, section 1 of the Constitution was superseded by the 12th amendment. 

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; 

The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President.]* 

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. 

*Superseded by section 3 of the 20th amendment.


AMENDMENT XX

Section 3 of the 20th Amendment reads:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. 
 
(The Vice-President is next in line to the presidency)
 
If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
  
(The Vice President may assume temporary Presidential authority if the President is not able to fulfill the duties of the office, even if it is for a few hours)


Below is the entire text of Article II, Section 1 of the U.S. Constitution (Source: The National Archives):

Article. II. Section. 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” 

 

 

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