With less than a week to go before the Electors vote, there is a sense of urgency. Something is up, certainly, but what exactly? What can be accomplished ahead of the December 19th vote?
Probably nothing. The Trump presidency may yet be a done deal. But there is a way out – for the Republican Party, that is. It requires only abstention, not a switch to Clinton.
As it stands now, Trump has 306 electoral votes. It would take 37 of them to opt to simply not vote for him to push his total below the magic 270 necessary to win. They don’t have to vote for Clinton for this to happen, either. An abstention or a vote for anyone else, as is their prerogative in most states, would do it.
This would throw the election to the US House to decide who becomes President, voting as one state delegation having one vote. That seems like the same thing to you? It most likely would be. Except that the House can vote however it wants to.
With the revelation that the election has been tainted, which is hardly a revelation, would give the House time to investigate. At least a month will be theirs for posturing.
The Constitution spells out the process in Article II, Section 1:
3: 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.
This means that if, say, Paul Ryan has at least one vote from an Elector there is no reason why the House cannot choose him to be President. Or Mike Pence, for that matter. It takes only one vote from a faithless elector to put a name in the top five, given that there are really only two candidates coming into this.
How damaged would such a President be? The short answer is “about as damaged as Trump at this point.” It is very clear that there is essentially nothing to lose by taking this route, given that we are set up for a series of protests over a President with two major flaws – a large loss in the popular vote and fairly obvious questions about the legitimacy of the election in the first place.
What is key to look for in all of this is a maneuver by someone other than Trump to have their name placed into the process by an elector. We may not know until next Monday just what happens, but we can expect at least a few strange votes beyond Trump and Clinton.
The short version is – this has a long way to play out. Given that, the first thing to do is to stall. Will the Electors be convinced that they should stall the process by throwing it to the House? It takes about 12% of them to do it.