Many of you ask me whether it’s likely the Electoral College will pick Hillary Clinton to be president rather than Donald Trump on December 19, when the Electors meet to officially choose our next president. Here are the three major arguments for why the Electors could choose Clinton, and my responses:
1. She won the popular vote by 2.5 million people – more than 5 times the margin Al Gore had over George W. Bush in 2000. Shouldn’t that cause the Electors to change their minds?
Answer: No. The Electoral College has no constitutional authority to base its decision on the popular vote.
2. But even so, the only reason the Electoral College has authority to thwart the will of the majority (say constitutional scholars) is to prevent people from becoming president who are demagogues, or are under the influence of foreign powers, or are plainly incompetent.
Trump fits all three categories. Not only is he an incompetent demagogue, he refuses to put his global holdings into a blind trust, which will create financial conflicts of interest. In the view of the chief ethics officers of the George W. Bush and the Obama administrations, this alone should cause the Electors to disqualify Trump from office. In addition, Article I, Section 9 of the Constitution prohibits office holders from enriching themselves with the “emoluments” of foreign officials – which is exactly what Trump is on the way to doing by suggesting foreign dignitaries stay at the new Trump International Hotel in Washington when they visit him in the White House, the profits of which go to Trump and his family.
Shouldn’t all this be enough to get enough “conscientious” electors to change their minds and vote for Hillary Clinton?
Answer: Extremely unlikely. These are subjective criteria. Once the Electoral College begins deciding that someone who’s duly elected president through our constitutional process will not become president on the basis of subjective criteria, there’d be no end to the contention that might ensue.
3. Finally, recounts are underway in Wisconsin and Pennsylvania and, soon, in Michigan (despite Trump’s effort to stop these recounts — see below). If these recounts reverse the outcomes in those three states, Clinton wins the electoral votes she needs to become president. Is this likely?
Answer: Still no. Although the numbers seem small, it would be very surprising if Trump’s lead in these states (which, prior to the recounts, was cumulatively over 100,000) were reversed through recounts.
Given all this, the chance that Hillary Clinton becomes our next president instead of Donald Trump when the Electors cast their votes on December 19 is still very low. This doesn’t mean you shouldn’t hope.
What do you think?