Secretary Hillary Clinton won the popular vote. The way the current Electoral College works, Trump won the Electoral Vote.

However, from the point of view of Federal Law, he didn’t win anything yet. The Electors who gather in each state, with each state’s Secretary of State, to vote on the first Monday after the second Wednesday in December are not bound by Federal rule to vote for Trump. They could cast their vote for Clinton.

Those organizing protests may want to consider having some of those protests at the Secretary of State’s office, with the idea of having a very large protest on the First Monday after the Second Wednesday in December, at the time of the casting of the electoral votes.

State laws that govern the way voting works require, in various and sundry manners, those electors to vote en masse (in most states) for the winner of that state’s popular vote. But these are state laws, not federal laws. So called “Faithless Electors” who do not do what the state law specifies may be subject to fines or other punishment. But, their vote, the vote that might get them in trouble in their own states, will still be valid votes that will help determine who wins.

If faithless electors vote for third party candidates or other random individuals, and enough do that, and the Electoral College fails to achieve the 270 or higher majority for any one candidate, then the Electoral College’s results are thrown out and the names of the top three Electoral Vote getters are sent to the House of Representatives, who then have the opportunity to pick a candidate.

They would pick Trump, and we would be back to the situation where the person who won the vote, Hillary Clinton, would not be the president elect.

#TheFirstMonday movement calls on the electors in all states to cast their vote for the person who won the national popular vote, Hillary Clinton. Every elector votes independently, though perhaps on pain of punishment from their state.

Twenty-one electors need to do this, given the current Electoral Vote count of 228 – 290.

There are a few possible unfaithful electors in Washington and elsewhere who may vote for a third party, who were otherwise going to vote for Clinton, so in order to avoid that situation making the Electoral College vote irrelevant, more than twenty-one electors must be unfaithful.

I call for the initiation of fund raising, perhaps through “go fund me” pages and such (I am not experienced with this, I hope others will do this) to pay for the legal fees and perhaps to take care of the families of faithless electors who are punished by their states, and for petitions in those states to insist that the legal authorities there do not take legal action against any faithless electors that may emerge.

Here is some interesting commentary on the Electoral College by Lawrence O’Donnell:

Comments

  1. #1 Brainstorms
    November 11, 2016

    Greg, it may not be as many as 21.

    This article points out that at least 3 states are still counting (mainly provisional) votes, and the margins are close enough to throw Wisconsin, Michigan, and/or New Hampshire to Hillary. Possibly.

    http://www.newsweek.com/donald-trump-hillary-clinton-election-tie-519696

    Combine that with a handful of electors who vote their conscience (as Lyin’ Ryan admonished), and we have “Madam President” in 2017…

  2. #2 Gary S
    So Cal
    November 11, 2016

    “Twenty-one electors need to do this, given the current Electoral Vote count of 228 – 290.”
    I’m not sure I understand your math. Clinton is ahead in New Hampshire, so will probably get 232. So then 38 Trump electors would need to vote for her to yield 270, yes?

  3. #3 Greg Laden
    November 11, 2016

    Yes, I had noticed that but since it is uncertain I didn’t mention it. The number may well narrow.

    We may end up with an electoral tie.

    Gary, that was based on results at the time. NH, WI, MI are counting and close, so the number would change.

    The math HERE is not the important math. The math on the #FirstMonday is the important math.

  4. #4 Brainstorms
    November 11, 2016

    Trump’s election was also uncertain.

  5. #5 RickA
    United States
    November 11, 2016

    Good luck!

    It is fine to try to change the system – but probably not a good idea to try to corrupt it.

    I don’t think this will work and if it does, think of the precedent it sets for the future.

  6. #6 George
    Ohio
    November 11, 2016

    As much as I don’t want the Supreme Cheeto to be president, I think this may be a bad idea. I’m concerned that those that have been emboldened now with a perceived Trump vicory and are now committing hate and sex crimes will then be further disenfranchised along with those that voted for Trump due to the economic problems. Both of those particular groups may then take arms and start some sort of actual insurrection beyond what Bundy did. Even if they just protest, chances are it will not be peaceful.

    Furthermore, would it really matter at this point since Clinton conceded?

    When I heard LDPOTUS speak about a peaceful transition, I think that’s the way we need to go and then block as much of the upcoming assine laws that Pence is going to force Trump to sign.

  7. #7 Brainstorms
    November 11, 2016

    Furthermore, would it really matter at this point since Clinton conceded?

    Don’t forget that Gore conceded in 2000. It has no legal binding. He later retracted his concession and demanded a recount. All on the up-and-up. (Well, at least until the SCOTUS intervened.)

    (And the asinine laws will come from Mitch McConnell, not Pence.)

  8. #8 George
    Ohio
    November 11, 2016

    #8 Brainstorms
    Ah, I had forgotten that it happened in that order.

    When I referenced Pence I meant that he would be directing Puppet Trump to sign them, not that he would be making them up. Obviously new laws come from Congress to be approved by the POTUS, but I’m sure that Pence will also urge Trump to make a couple of executive orders: birth sex determines bathroom in schools, gay marriage ban, vaccine ban, etc.

  9. #9 Greg Laden
    November 11, 2016

    RickA, this is not corrupting the system.

    Winner take all was a corruption of the system designed to tamp down third party candidate and NOT in the Constitution.

  10. #10 Greg Laden
    November 11, 2016

    George: “I think this may be a bad idea. I’m concerned that those that have been emboldened now with a perceived Trump vicory and are now committing hate and sex crimes will then be further disenfranchised along with those that voted for Trump due to the economic problems. Both of those particular groups may then take arms and start some sort of actual insurrection beyond what Bundy did. Even if they just protest, chances are it will not be peaceful.”

    Do not be afraid. With your fear that they will act badly, they have defeated you. Rise up, man!

  11. #11 Greg Laden
    November 11, 2016

    On the concession session, there is no electoral provision for that. It is meaningless.

  12. #12 Brainstorms
    November 11, 2016

    I’m sure that Pence will also urge Trump …

    Oops. No, he won’t. Trump is a narcissist. One cannot control a narcissist.

    Pence will be as frustrated with Trump as Ryan & McConnell are likely to discover next year.

  13. #13 dean
    United States
    November 11, 2016

    Don’t forget that Gore conceded in 2000. It has no legal binding. He later retracted his concession and demanded a recount.

    Not quite. Gore did concede when Florida was called for Bush, and called Bush’s campaign office. They later said it was quite gracious.

    But when it became clear that the margin of victory was below the threshold dictated by law, Florida law required a recount be done. At that point the declaration of Bush winning was put aside: Gore (or his staff, I forget which) called Bush’s campaign office again and, in light of the circumstances, retracted his concession – which they said was “Understandable”. Gore did no demand the recount, state law did.

    After several days of fumbling starts and indecision – mostly due to interference from Jeb Bush, but also noticeably due to plain old incompetence, Gore began pushing for a recount of the counties with the highest percentage of Democratic voters, mistakenly believing that it would be done AND he would pick up enough votes to win. (Studies since then show that had that been done, Bush would have been declared the winner.)

    The Bush camp was afraid the Florida Supreme Court would order a state-wide recount, and they were not sure it could come down on their side. (Several people in his campaign leadership had been stunned when Florida was called for them.) James Baker (yes, THE James Baker) was the driving force behind moving the recount argument out of Florida to the SCOTUS, as he expected Bush to lose a statewide recount. As he recounted in a 1915 CNN interview, he asked other members of the Bush team:

    BAKER: Do you want to be ideologically pure, or do you want to win? They said we want to win. And I said then don’t be criticizing our going to federal court because if we stay with the Florida Supreme Court we’re going to lose. There was no doubt about it, and if you look at their opinions and the way they screwed us with those opinions it — we would have lost.

    (Transcripts here:
    http://transcripts.cnn.com/TRANSCRIPTS/1511/02/csr.01.html)

    After they went to the Supreme Court the rest is, as they say, history.

    Final comment: Baker, in that CNN session, does make one very good point. Gore and his team repeatedly said “Make every vote count,” but then once recount efforts were underway pushed to have only the 3 or 4 most heavily Democratic counties considered. “How is that making every vote count?” was his question. It won the day.

  14. #14 Mark
    Pennsyltucky
    November 11, 2016

    I thought about this, but I wondered if “faithless electors” might conspire to cast their votes for Ted Cruz, just because they hate Trump. On the one hand, the Electoral College is a means of preserving the role of the states in selecting the president. On the other hand, it was a means for taking advantage of the contribution of slaves to the number of electors without letting them vote. As designed, the electors could gather and vote for whomever they damned well pleased.

  15. #15 Greg Laden
    November 11, 2016

    Mark, anything can happen. Status quo, Trump is elected. Alternatives: Trump is put in by Congress, then people can get mad at them and vote them out. Or, alternative: Trump doesn’t get elected. Worth a shot.

    Dean, right the idea that gore demanded a recount is one of the GOP lies that has become part of the general knowledge.

    And,again, there is no concession. It is not an official part of the process. Just like electors voting as we normally see them do is not official.

  16. #16 Walt Garage
    US
    November 11, 2016

    Everyone knew the rules going in.

    I have a great idea. Let’s throw the country into even MORE confusion, by letting the electoral college change the system at the last moment. Hell, it looks like Clinton won the popular vote by a half a percent – surely that’s worth bringing it all down. I’m sure that the 54.5 percent who voted for Trump will be more than happy to let the 55.5 percent who voted for Clinton just overthrow the voting system they’ve known for their entire lives.

    I’ll be dead in about 10 to 15 years. I would appreciate it if you would all wait until then before starting a new civil war.

  17. #17 Jim Balter
    United States
    November 12, 2016

    People are talking as if a Trump presidency doesn’t mean breakneck acceleration of global warming with the resulting end of human civilization.

  18. #18 Brainstorms
    November 12, 2016

    Walt, if the Electoral College decides to vote Hillary Clinton into the White House in December, that will be “the way the system works”, not” changing the system at the last moment”.

    There are more that 150 cases in the past of Electors who voted other than what their state’s popular votes indicated “they should” vote.

    But that’s your problem: This is “the voting system they’ve known for their entire lives”. It’s just not the voting system they expect it to be.

    If you truly want to avoid these kinds of “civil war” type situations, then you’d be in favor of eliminating this troublesome Electoral College and replacing it with exactly what people expect of their voting system: That the candidate with the largest popular vote is the candidate that wins.

    Because that’s not the system we have today.

  19. #19 Theresa
    November 12, 2016

    I was angry in 2000, and furious in 2016 that they’ve done it again. I can understand why protests have gotten out of hand. How long do these Politian’s expect us to remain civil! It makes someone who’s never had even a speeding ticket at age 60 feel murderous towards the injustice having already endured the consequence’s of Bush!

  20. #20 Doug Alder
    Canada
    November 13, 2016

    As of a couple of minutes ago 11:25 PST the petition, https://www.change.org/p/electoral-college-electors-electoral-college-make-hillary-clinton-president-on-december-19 has gathered 3,851,317 signatures.

  21. #21 RickA
    November 13, 2016

    Doug:

    It won’t matter if a hundred million sign the petition.

    Why would a republican slate of electors vote for Clinton?

    They wont’.

    Sure maybe one or two will be faithless – but not wholesale defections from their own party.

    But the petition is a useful outlet for their despair and certainly better than rioting.

  22. #22 Brainstorms
    November 13, 2016

    Why would a republican slate of electors vote for Clinton?

    Why did all those (dozens of) Republican Party leaders vote for Clinton?

    Probably all for the same reason. Maybe even some of them have signed the petition, too.

  23. #23 RickA
    November 13, 2016

    Brainstorms asks “Why did all those (dozens of) Republican Party leaders vote for Clinton?”

    I think it was because they thought Trump had no prayer of winning and Clinton had it in the bag.

    Now that they know Trump won I bet it is different.

    I don’t expect very many if any defections.

    But we will see.

  24. #24 Brainstorms
    November 13, 2016

    Really, RickA?

    You’re telling us that the leaders of the Republican Party are so shallow and unconcerned with party ideology that they would vote against their nominee solely on the basis of thinking that the Democratic candidate had a better chance of winning?

    Excuse me, I’m in spasms of laughter. Give me a minute…

    Okay, so from RickA, we get that in both 2008 and 2012, all the leaders of the Republican Party voted for Barack Obama because he had a better chance of winning.

    You’re a piece of work, RickA…

  25. #25 RickA
    November 13, 2016

    It is not just that they thought Clinton would win.

    The leaders never wanted him to win the nomination and didn’t think he was really a “republican”. They didn’t really support him and many nevertrumpers actually wanted him to lose.

    Now that he won everything is different and they are getting behind him and kissing his ass.

    So yeah – no or just a few defections.

    Not enough to matter.

    That is my prediction.

  26. #26 Jesse
    November 13, 2016

    Some historical notes.

    There have been four cases I can think of where the electoral college and the popular vote mismatched (at least post-Civil War). The election of Rutherford B Hayes in 1872, which was decided by a special electoral commission (basically a deal with the Democrats to end Reconstruction). Then there was 1888 when Benjamin Harrison won. (Nobody remembers much of wither Hayes or Harrison, for what it’s worth).

    Then there was 2000, and 2016.

    The thing is, I can’t see much upside for progressive people if a letter-writing campaign convinced some electors to vote Clinton. There are two parts to this. First, the Republican electors have no political incentive to buck the voters. (Remember many are local elected officials themselves). The other part is that let’s say the electors in PA were convinced to vote against Trump, as well as say, Michigan. Conservatives would be screaming that the Democrats — and all those brown people, don’t forget — stole the election. That’s pretty powerful meme.

    And on top of that, you’d have a bunch of ostensibly progressive people trying to justify it. Telling folks that their choice was shitty is a losing political strategy. “Well, we convinced them to vote against the way the state did because Trump was dangerous” doesn’t work against a lot of ingrained tradition. It isn’t logical — but that’s the point. Politics is absolutely, totally, completely a-rational and a-logical. Mr. Spock would have a brain meltdown trying to figure out the American electorate.

    Here’s what scares the heck out of me: there is nothing to prevent Trump from issuing an executive order like FDR’s to intern the Japanese. Nothing at all. How many Americans would happily obey it? How many would just shoot their neighbors, because the bigot won and the electorate has said, “all that horrific KKK racism is A-OK?”

    If you think that’s implausible, I give you Bosnia. I give you Germany.

  27. #27 David
    Monroe, Louisiana
    December 2, 2016

    Losers lose, Greg is a bad loser