Will The Twelfth Amendment Be Invoked In 2016? Donald Trump's Electoral College Majority Makes It Unlikely
Following such a unique and unprecedented presidential election, there has been much speculation about ways in which the Electoral College could hypothetically change its outcome. The invocation of the 12 Twelfth Amendment is one way Donald Trump's 2016 election could potentially be overturned.
The 12th Amendment to the Constitution of the United States determines the process for what happens when neither candidate for president receives a majority of Electoral College votes. The Amendment says that if neither candidate receives a majority of electoral votes, then the House of Representatives is responsible for choosing the president prior to Inauguration Day. If this situation were to occur, the House would vote on the candidates receiving the top three highest electoral votes (meaning a third candidate could be in play). Each state receives one vote, regardless of its number of Congressional representatives, and these votes would then determine who wins the presidency.
While a 12th Amendment situation is an interesting one to ponder, and, indeed, was reflected upon in the media as a possible election outcome, it is highly unlikely that this scenario could occur. This is the case because Trump ostensibly won the Electoral College vote on election night, beating Hillary Clinton 306 to 232, well above the required 270 majority. Because the 12th Amendment is only invoked if there is no majority winner in the Electoral College, the odds of it coming to fruition in the 2016 election are highly unlikely.
That being said, of course, Electoral College votes are not official until the College votes on Dec. 19; the only way in which the 12th Amendment stands a chance of being invoked in this election is if there are enough faithless Republican electors who choose not to vote for their party's nominee (aka Trump) and instead nominate another candidate, causing Trump to lose his electoral majority. If this occurred, the 12th Amendment would then be instituted and the presidential election would be decided by the U.S. House of Representatives.
Many experts agree that that faithless elector scenario is close to impossible. Even though most electors are not legally bound to vote for their party's nominee (or, if they are, the penalties for not doing so are minimal), according to the New York Times, throughout history, 99 percent of electors have voted for their party's nominee. Furthermore, 37 electors would have to become "faithless" in order for Trump to lose his hold on the majority, which is a very substantial number and thus very implausible.
Overall, those holding out hope that the presidential election will be decided by 12th Amendment procedures will likely have to face the reality that this will not be the case; a 12th Amendment process first relies on the faithlessness of dozens of electors, a move which would be absolutely unprecedented in U.S. history.