Could The 12th Amendment Stop Donald Trump From Being President? It's Unprecedented
Millions of people are urging electors not to vote for President-elect Donald Trump when the Electoral College meets on Dec. 19. But how would the president be elected if more than a few electors turn out to be "faithless" and neither Trump nor Democratic nominee Hillary Clinton captured the majority of the vote? While a flipped Electoral College would be unprecedented, the Constitution has planned for just such an event. Here's how the 12th Amendment could (but likely won't) keep Trump from being president.
While some states may use state laws or party pledges to try and bind electors to the results of the statewide vote, electors are under no federal law or constitutional requirement to vote for the candidate who won the majority of votes in their state. Those who opt not to vote for their party's chosen candidate are commonly referred to as faithless electors. Faithless electors are uncommon, but not unheard of. In the Electoral College's more than 200-year history, there have reportedly been only 157 faithless electors, according to the nonprofit FairVote.
Although Trump lost the popular vote by more than 2.5 million votes, he held a lead where it really counted — in the Electoral College. Trump has 306 electoral votes to Clinton's 232, meaning that 37 electors would need to flip to undo Trump's lead. It should be noted, however, that a faithless elector has never tipped the outcome of the election and it remains doubtful they will do so this year. But what if they did?
In the unlikely event that signatures gathered on an online petition or the flood of phone calls and emails some electors have reported receiving convinced enough electors to flip their votes (and that those votes stand) and neither Trump nor Clinton managed to secure a majority of the vote (due to electors voting for third-party or independent candidates), the 12th Amendment provides an alternate method for electing the president and vice president.
Passed in 1803 and ratified the following year, the 12th Amendment provides instructions for how the Electoral College should operate as well as a method of electing the president and vice president should no one candidate capture a majority vote in the Electoral College. Here's what it says:
The Electors shall meet in their respective states and vote by ballot for President and Vice-President...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.
Did you get all that? Essentially, the 12th Amendment says that should no candidate receive a majority of the votes in the Electoral College, the task of electing the president will fall to the House of Representatives while the Senate takes on electing the vice president. Both governing bodies will elect the president and vice president from a list of the top three vote-scoring candidates.
Currently, Republicans control both the House and the Senate. And while some Republicans voiced an unwillingness to support Trump's White House bid during the general election, it's unclear if they'd go so far as to vote a Democratic candidate into office. But, again, the odds that no candidate receives the majority of votes when the Electoral College meets to vote on Dec. 19 are slim. However, should the 2016 election continue to be as unprecedented as ever, then the 12th Amendment lays out a process for the election of the president and vice president.