I’ve had several people ask me whether there is any legal recourse in preventing Trump from taking office in January. This is an unprecedented area of the law, and I am no constitutional lawyer, but there is a lot of work being done on this front. Note: this is action focused on preventing Trump from taking office. It does not apply to actions that may be available once Trump takes office. For example, Trump cannot be impeached until he is sworn in. He cannot violate the Constitution until he takes the oath of office. But for those interested in what is happening right now, here’s a run down of what I have seen and researched. Please feel free to weigh in if there are movements of which I am unaware.
Recount efforts are underway in Pennsylvania, Wisconsin, Florida, Nevada, and up until yesterday, Michigan. The votes were fairly close in these battleground states, but not close enough to trigger an automatic recount. The Republican party, and at times Trump, has challenged these actions to varying degrees of success.
Because these efforts change on a daily basis, it’s hard to keep up. However, regardless of the individual efforts to start and stop the recount process, the takeaway remains the same – Clinton would need to win enough electoral votes to get to 270 total votes, and take those states away from Trump.
How can she do it? If she wins Florida’s 29 votes, that would do it. However, the Florida suit was filed by individual voters and not any political party. These voters allege that Clinton actually won Florida’s electoral votes, but due to hacking, malfunctioning voting machines, and other problems, those votes weren’t recorded accurately. The plaintiffs request a hand recount funded by Trump, Florida’s Governor Rick Scott, and the electors in Florida. It is unlikely that this case will go anywhere before the electoral college meets in 11 days.
Clinton could also win if she takes the lead in Michigan, Pennsylvania, and Wisconsin. She’d need all three states to get the votes. Notwithstanding that Michigan’s recount has been halted indefinitely, it’s a tough road to win all three states. The margins were close, but not that close, and odds aren’t great.
There’s a movement called the Hamilton Electors, which is focused on convincing the voters of the Electoral College to vote for someone other than Trump when they meet to vote on December 19, and become “Conscientious Electors.” There are 538 voters in the Electoral College. Each state has a number of electoral votes (and voters), who physically meet to cast their votes to elect the president. According to the Hamilton Electors, quoting Alexander Hamilton, the Electoral College was founded to ensure 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.”
The movement involves trying to convince these designated individuals not to vote for Trump. It’s worked, a little bit. A Republican elector in Texas published an op-ed in the New York Times this week explaining why he will not vote for Trump.
There has been other work on this front besides bombarding electors with letters, phone calls, and emails. One law professor and political activist, Lawrence Lessig, is taking additional steps to facilitate electors who may want to switch their votes but only want to do so if there is collective action. He has established the Electors Trust, a confidential and free resource for electors who want to learn more about their options. Time will tell how many people take advantage of this service.
There’s more. Currently, 29 states have laws in place that require electoral voters to vote with the popular vote. On Tuesday, two voters in Colorado filed a lawsuit to that law in Colorado. This could open the path for filing similar lawsuits in the rest of the 28 states with similar laws. The Colorado case hasn’t gone anywhere yet, and people will have to act quickly to get any movement from the courts before December 19.
Abolish the Electoral College. Now.
Lots of people are talking about what to do with the Electoral College in the future, but some are focused on what to do now. Again, Lawrence Lessig is at the forefront of this theory. He published a post outlining the way forward. The argument rests on the Equal Protection Clause of the Constitution. In a nutshell, this argument is premised on the idea that one person should equal one vote, and the current structure of the Electoral College dilutes individuals’ votes. This happens both at a state to state ratio (i.e., the strength of an individual vote in California is less than the strength of an individual vote in Wyoming), and within the state. The “within the state,” or “winner takes all” argument is one I have not thought of before. Here, Equal Protection fails because the entire state votes for one candidate, even if almost half the individuals within the state voted for the other candidate. The voters who voted for the winner get their vote counted, while the voters who voted for the loser have no impact whatsoever on the election.
Fine, sounds good, but how do you get it done now? It would have to be decided by the Supreme Court, and would most likely be filed by Attorney Generals of states, who would file the case on behalf of their state with the Supreme Court. Although I have heard people discuss the concept, I have not seen any action on this front.
National Popular Vote Interstate Compact
The National Popular Vote Interstate Compact (“NPVIC”) is a proposed agreement between states, under which states that are a party to the agreement would assign their electors to vote for whomever wins the popular vote nationwide. The NPVIC is set to kick in only when enough states join to guarantee the requisite 270 votes. Eleven states have joined, adding up to 165 votes. The NPVIC will need another 105 votes before it kicks in, and although legislation has been introduced in all 50 states on this issue, no state has approved the agreement since 2014. It is unlikely that enough states will sign on and push through legislation to this effect before December 19, but this would bypass the need to amend the Constitution (which, as a reminder, can be done by a two-thirds vote in the House and Senate, or through a constitutional convention called by two-thirds of the states).
This is an uphill battle any way you slice it, and time is running out. I’ll be honest with you – this is not the area I am choosing to spend my time on, but I support and appreciate the ways people are thinking and acting to address some increasingly clear issues with our structure. I think more talk about the Electoral College is good, and fully support actions to make it more fair overall.
Another aspect of all this, away from the gilded walls of academia, is what impact these avenues might have on our country. I think a recount showing Clinton actually won the contested states would be the smoothest way to transition Trump out of his role as president-elect, as it is still working within an accepted, already-existing structure. I think if we, as in Democrats, tried to overthrow the Electoral College it may lead to huge outbreaks of protests and potentially violence.
We’ll see what the Electoral College does in 11 days. Until then, I’m focusing on what we can do when president-elect Trump becomes President Trump.