Hamilton Electors, Congress, and the 20th Amendment: The Craziest What If Scenarios

Recently, there has been a lot of talk about “Hamilton Electors” (members of the Electoral College who are allowed to vote against their state’s popular vote).  More talk has been risen about the irregularities in voting in three key states: Pennsylvania; Michigan; and Wisconsin.  Green Party candidate, Jill Stein, has even launched a fundraising campaign to file for a recount in those three states.

So, let’s play this scenario out to it’s logical, and probable conclusions.

 

The Recount

Let’s say the recount is filed, launched, and irregularities are discovered.  It is possible, and based on arguments by computer scientists, it is even probable that we could see a shift in the popular vote in those states, as high as 7% in favor of Clinton.

Now, this would have a dramatic affect on the election, possibly.  However, with Hillary Clinton’s current 232 electoral votes, she would have to win vote shifts in Pennsylvania (20 electoral votes), Michigan (16 electoral votes), and Wisconsin (10 electoral votes) in order to get to the required 270 (or in this case, 278 electoral votes).

However, a shift in the popular vote isn’t the only thing that could sway the electoral college.  The recount itself may take longer than expected.  It’s even possible that discrepancies on voter intent on the ballot may arise.  Remember the infamous “Hanging Chad” from the 2000 voter recount in Florida?

The recount could reveal so many irregularities, that it could become a legal nightmare, and prevent the states from certifying their vote count at all.  A court challenge could be issued to block the state from certifying its vote count, in which case, their electoral college votes could not be cast and submitted to Congress.

Again, based on Donald Trump’s projected win of 306 electoral votes, all 3 of those states would have to have a cumbersome recount, warranting a blocked certification.  Or potentially, a mix, i.e. a major vote shift in Pennsylvania, and a block in Michigan and Wisconsin.

At this point we would move on to the Electoral College.

The Electoral College

A Faithless Elector, or as they prefer to be called, a “Hamilton Elector” is someone who believes in Hamilton’s Federalist 68 paper, stating:

The process of [the Electoral College] affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. 

Many people scoff at the idea of Faithless Electors influencing the election now, but they report that they already have 6 members ready to defect.  One more, and they will surpass the highest amount of faithless electors, when 6 members of the Electoral College refused to vote for James Madison.

You can actually contact your electors by going to AskTheElectors.org

According to projections, the “Hamilton Electors” would need to convince 37 Republican members of the Electoral College to vote against Trump.  37 may seem like a high number, but the Hamilton Electors already have 6, and they have a month to go.  It is possible that they could convince other electors to join them.

It is also possible that Trump could push electors away from him through controversial cabinet appointments.  Recently, Kellyanne Conway tweeted about how Trump Loyalists were infuriated by the idea of a Trump-critic, Mitt Romney, being considered for Secretary of State.  This could be a precursor to a choice of Trump-Loyalist Rudy Giuliani for Secretary of State.  However, as former Republican Congressman, and TV Pundit, Joe Scarborough, pointed out, a radical choice of Rudy Giuliani or John Bolton for Secretary of State, may push Republicans over the edge.

A choice of Rudy Giuliani, along with other controversial top picks of Kris Kobach and Steve Bannon, could push enough Republican members of the Electoral College to vote against Trump.

Now, this does not explicitly mean voting for Hillary Clinton.  The 37 Republican Electors could vote for Mrs. Clinton, another Republican candidate (a dark horse candidate), or simply abstain.

The more likely option for Republican candidates is abstention, but if a dark horse candidate were to get as little as one vote from the Electoral College, then they would be in the running for the Presidency.  Combine that with Donald Trump not receiving the requisite 270 votes to win the Presidency, and then the issue would go to the Congress.

A Congressional Decision

According to the National Archives Page:

If no candidate receives a majority of Electoral votes, the House of Representatives elects the President from the 3 Presidential candidates who received the most Electoral votes. Each state delegation has one vote. The Senate would elect the Vice President from the 2 Vice Presidential candidates with the most Electoral votes. Each Senator would cast one vote for Vice President. If the House of Representatives fails to elect a President by Inauguration Day, the Vice-President Elect serves as acting President until the deadlock is resolved in the House.

So, let’s do the math.  The Vice President is chosen by the senate, and it is most likely that Mike Pence would win a vote as Vice-President, 52-48.  But what about the House?

Let’s remember, in our previous scenario, Donald Trump has been denied a majority of the Electoral College, Hillary Clinton has won the popular vote by over 2 million votes, and a possible Dark Horse Republican candidate could be in the running, thanks to the Hamilton Electors.

There are several speculative scenarios that could happen.

Congressional State Delegations Vote Trump/Clinton Along Party Lines

Each state delegation is given 1 vote, and the President will need a majority of the states to decide.  What if each Congressperson voted as part of their delegation along party lines?  Let’s do the math, state by state, based on party lines.

Trump Clinton Abstain/Tied
·      Alabama (6 to 1)

·      Alaska (1 Unanimous)

·      Arizona (5 to 4)

·      Arkansas (4 Unanimous)

·      Colorado (4 to 3)

·      Georgia (10 to 4)

·      Idaho (2 Unanimous)

·      Indiana (7 to 2)

·      Iowa (3 to 1)

·      Kansas (4 Unanimous)

·      Kentucky (5 to 1)

·      Louisiana (5 to 1, or 4 to 2, unsure due to a runoff election)

·      Michigan (9 to 5)

·      Mississippi (3 to 1)

·      Missouri (6 to 2)

·      Montana (1 Unanimous)

·      Nebraska (3 Unanimous)

·      North Carolina (10 to 3)

·      North Dakota (1 Unanimous)

·      Oklahoma (5 Unanimous)

·      Pennsylvania (13 to 5)

·      South Carolina (6 to 1)

·      South Dakota (1 Unanimous)

·      Tennessee (7 to 2)

·      Texas (25 to 11)

·      Utah (4 Unanimous)

·      Virginia (7 to 4)

·      West Virginia (3 Unanimous)

·      Wisconsin (5 to 3)

·      Wyoming (1 Unanimous)

·      California (39 to 14)

·      Connecticut (5 Unanimous)

·      Delaware (1 Unanimous)

·      Florida (16 to 11)

·      Hawaii (2 Unanimous)

·      Illinois (11 to 7)

·      Maryland (7 to 1)

·      Massachusetts (9 Unanimous)

·      Minnesota (5 to 3)

·      Nevada (3 to 1)

·      New Hampshire (2 Unanimous

·      New Jersey (7 to 5)

·      New Mexico (2 to 1)

·      New York (18 to 9)

·      Ohio (12 to 4)

·      Oregon (4 to 1)

·      Rhode Island (2 Unanimous)

·      Vermont (1 Unanimous)

·      Washington (6 to 4)

·      Maine (1 to 1, Tied)
Trump – 30 States Hillary – 19 States Tied – 1 State

So, in a party line vote, we have a Trump Presidency.  However, what if other scenarios arise?

Pressure &  Deals

There are several what-if scenarios that could flip the vote in the House of Representatives.

What if Republican Congresspersons from Blue States decided to vote with their populace?  That could flip Virginia, Colorado, and Maine, but still leaves Hillary in need of 4 states.

What if Hillary were to make deals?  I believe this is a very likely scenario, since Hillary Clinton was known as a hard working Senator who could make deals and compromise in order to move a liberal agenda forward.  To that end, there are actually 5 states where due to the low population, they have only 1 Congressional Representative.  So, in theory, Hillary Clinton could flip 5 Congressional Representatives, and as a result, flip 5 states in her favor, including Wyoming, South Dakota, North Dakota, Montana, and Alaska.

Conversely, Clinton only has 2 states in her column with single-person delegations, which could be potential Trump converts.

Now, the 5 listed above are deep red states, so it is unlikely they would flip easily, so if Hillary Clinton wanted to get those states, she would have to make major deals for infrastructure planning, services funding, or even a major appointment compromise.

What do I mean by appointment compromise?  I mean Hillary Clinton would have to either accept a Vice-President Pence (who has already been voted in by the Senate), or give up on Barack Obama’s appointment of Merrick Garland for the Supreme Court.

Now many of you may be saying that if it comes down to this, she would not accept either.  However, I would like to point out 2 facts:

  1. If Donald Trump wins the Presidency, then he will reject Merrick Garland’s appointment, and appoint a Pro-Life Trumpian, and based on his pick of Jeff Sessions for Attorney General, Trump is more interested in voting for loyal supporters who align with the Alt-Right.
  2. Supreme Court Justice Ruth Bader Ginsburg is 83.  Supreme Court Justice Anthony Kennedy is 80.  Supreme Court Justice Stephen Bryer is 78.  It is possible that these 3 justices will pass away over the next 4 to 8 years.  Conservative appointed judges are all in their 60’s.  Giving up on Merrick Garland to replace Antonin Scalia may be a tough pill to swallow, but ensuring a Democratic President in order to hold the Liberal Seats on the Supreme Court may be a necessity, to avoid Radical Right appointments, shifting the court for a generation.

There is one other possibility, a Republican revolt against Trump.

As of this writing, Paul Ryan is still the Speaker of the House, and the relationship between the two is a tenuous one.  Many Republicans have spoken out against Trump’s appointments.  If Trump continues to govern from the Alt-Right, we may see a number of Republicans from Liberal states shift their views.

As of this writing, FiveThirtyEight.com has done an analysis on Senators who are most like to oppose Trump policies, including Susan Collins, John McCain, Dean Heller, Rob Portman, and Lisa Murkowski.

Who knows how many Republicans in Congress may shift?

Gridlock over a Dark Horse Candidate

Earlier, we discussed the possibility of Hamilton Electors voting for an as of yet unknown dark horse candidate.  If this dark horse candidate were to receive as little as one vote, they would be eligible in the House of Representatives.

So, if Trump continues to pursue alt-right appointments, this could alienate, and cause a revolt amongst Republicans in the House.

If 6 Republican-leaning state delegations were to break ranks with Donald Trump, and vote for the dark horse candidate, then he would be left with only 24 state delegation votes, and while he would have a plurality, it would not be a majority, and he would not win the presidency.

There are two possible outcomes from this:

  1. Hillary could negotiate her way to get the remaining votes she needs, as discussed above.
  2. Or, the deadlock in the House would be unsurpassable, and according to the 20th amendment, Mike Pence would become President of the United States.  This might be even a preferred method for the Republicans, considering the GOP is still deeply divided about Trump, with senators like Rand Paul, Lindsey Graham, and John McCain calling for investigations into his possible coordination with Russia, and numerous Conflicts of Interest.

So, what will happen?  We will all be kept in suspense until January 20th.  Until then, we encourage you to get involved, call your representatives, and take an active part in the governing process.

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