Can Bernie Sanders Be Elected President By Faithless Electors?
TIP: This article was written prior to the electoral college casting their vote on December 19th, 2016. It was true up until the point that the electors cast their votes. Moving forward it will be true that “the electors can swing the election and elect someone other than the candidate who won the general election”.
Bernie Sanders can still technically be elected President by electors (who vote December 19th, 2016). This could be done by 270 electors voting for Bernie, or by Trump being deprived a 270 majority and the House electing Bernie. This can be confirmed by the Amended Constitution.
For the House to be able to elect Bernie Sanders, he would need to be in the top 3 Presidential Candidates chosen by electors according to the rules laid out in Article II, section 1, of the Constitution as amended by the 12th Amendment (NOTE: it was top 5, but changed to 3 by the 12th). This would move the vote to the House where Bernie could then be elected by the House of Representatives. The same thing can happen for the Vice President, but it is out of the top 2 for the VP and they are chosen by the Senate, not the House.
This would require “faithless electors” to vote against their state’s popular vote, which while Constitutional, breaks state-based rules in some states and can result in a fee for the electors.
There is essentially a near zero chance this could or would happen, but despite this, the idea that it can’t happen is a myth (i.e. this HuffPost Article is wrong: Bernie Sanders Could Replace President Trump With Little-Known Loophole).
In summary, in our Republic the Constitution is the supreme law of the land. It doesn’t say anything about not winning a Primary, nothing about winner-takes-all, nothing about the popular vote. It says:
“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.” – 12th Amendment describing Bernie’s [very unlikely] path to victory via the House.
FACT: The above is true for anyone who ran for President. Although to be very Constitutional and technical, there is nothing in the Constitution about a Presidential election outside the wording pertaining to electors in in Article II (and its related Amendments, namely the 24th Amendment). Thus, any U.S. born citizen (whether they ran for President or not) can be made President by the electors technically speaking (if there is, I can’t find it in the Amended Constitution or even 3 U.S. Code Chapter 1 – PRESIDENTIAL ELECTIONS AND VACANCIES).
The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax. – 24th Amendment Section 1. (i.e. the one time “primary or other election for President or Vice President” is mentioned in the Constitution).
The 12th Amendment Explained: The Constitution of Dummies.
TIP: In other words, even though Bernie lost the primary and wasn’t a candidate in the November 8th election he can still be elected President. This is because the United States is a Republic where the Electoral College picks the President per rules outlined by the Constitution. The electors vote December 19th, the state-based winner-takes-all rules are state laws and custom, but they can’t override the Constitution technically speaking.
Examples of How Bernie Could Still Win
So, for example, if the electors vote:
- 269 Trump
- 268 Clinton
- 1 Bernie
- Thus, in the above scenario, the vote goes to the House as no-one gets the required 270 majority. With Bernie now in the top 3, the House elects Bernie. Bernie is President.
- For another example, the almost literally impossible could happen and 270 electors could switch their votes to Bernie. This would also result in a win.
TIP: If this isn’t obvious: 1. A Trump win is most likely (as would be tradition) 2. A Clinton win is much easier to pull off than a Bernie win. (as she needs to flip far less votes and is already set to be in the top 3). 3. Johnson, Stein, Bush, Joe or frankly anyone who ran for President could be elected in the same general way. This page isn’t suggesting any of this is a good idea, it is only stating it is possible.
FACT: There are 538 electors and a 270 majority vote is needed to elect both the President and Vice President (who are voted for on separate ballots). Why 538? The number of electoral votes is tied to congressional representation. The House has 435 seats, while the Congress has 100, and D.C. makes up the other 3.
TIP: In the event the vote goes to the House, each state delegation votes en bloc – each delegation having a single vote; the District of Columbia does not receive a vote. A candidate must receive an absolute majority of state delegation votes (i.e., at present, a minimum of 26 votes) in order for that candidate to become the President-elect. Additionally, delegations from at least two-thirds of all the states must be present for voting to take place. The House continues balloting until it elects a president. The House of Representatives has chosen the president only twice: in 1801 under Article II, Section 1, Clause 3 and in 1825 under the Twelfth Amendment.
So Says the Law: Article II, Section 1, of the Constitution and 12th Amendment
All the above can be confirmed by the Amended Constitution, specifically Article II, section 1 as Amended by the 12th Amendment (end of story, all the articles like this HuffPost article are wrong, the Constitution overrides the blog-o-sphere and all other judgements every time without exception):
A portion of Article II, section 1 of the Constitution was superseded by the 12th Amendment. The 12th Amendment is presented in full below:
“The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, 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; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. –]* The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. *Superseded by section 3 of the 20th amendment.”
FACT: Don’t think things can’t change, the electoral system can change and electors can break custom in the original spirit of the Republic. Winner-takes-all rules were changed since the Constitution was written, and Senators used to not be elected by direct vote until the 17th Amendment established the direct election of U.S. Senators. The 12th, 14th, 15th, 19th, 20th, 22nd, 23rd, 24th, 25th, and 26th Amendments all change the way voting works in the United States and the House has picked the President before (such as in 1824 Jackson vs. Adams). See Presidential Election Laws.