It is a misconception that the November 8th Presidential election decides the election. The U.S. is a Republic where electors decide the election. Faithless electors can upset the November 8th vote, but never have due to custom. However, with 2016 being so divided and the popular vote so close, anything is possible.
The General Election Doesn’t Decide the President, the Electoral College Does
Votes cast for President and Vice President in the general election are advisory votes, the President and Vice President aren’t decided until the electors’ direct votes are cast and counted.
For 2016, this meant:
The November 8th Presidential election didn’t decide the election. The November 8th election was an advisory vote. The President-elect wasn’t decided until January 6th when the electors’ December 19th votes were officially counted.
Given the above, this means the expected President-elect isn’t officially President-elect until the College’s votes are counted, although it is customary to refer to them as such.
In fact, electors can deprive Trump of a 270 majority and send the vote to the House as per the Constitution. Or, although it is extremely unlikely, they can all vote for a candidate other than Trump by a 270 majority.
Although the chances are almost non-existent for any of this, the election rules were purposely written into the Constitution by America’s founding fathers (with their purpose expressed well in the Federalist #10). Nothing is final until the elector’s votes are counted and then the new President is officially inaugurated on January 20th.
FACT: Due to the fact that electors cast votes, there was a slim chance candidates other than Trump / Pence could have been elected President or Vice Presidents. See how other candidates like Bernie could have won.
The Electoral College and the Republic – Why Electors Choose the President and Vice President
The U.S. is a Republic, not a direct Democracy. This is true in that officials make federal laws and vote on them and it is true in that the people don’t vote directly for the President and Vice President.
The U.S. Constitution sets up a system of electors (the Electoral College), but it doesn’t mandate that they follow the national popular vote or state-based popular votes.
In fact, there is no Constitutional provision or federal law that requires electors to vote according to the results of their state’s popular vote or the nation’s popular vote.
The winner-takes-all system we use in practice (where electors vote with the popular vote in their state) is defined by state-based rules and custom, not the Constitution.
This means every elector can, Constitutionally speaking, switch their vote if they thought it would safeguard the Union. However, Constitution aside, even with state-based rules considered, electors in 29 states can still change their vote and upset the advisory vote cast by about 55% of the voting eligible population in the 2016 general election in which Trump won more states, but Clinton won the popular vote by nearly 3 million votes.
FACT: Some dates are subject to change each election, for example electors vote “On the first Monday after the second Wednesday in December” which in 2016 is December 19th. Likewise, the general election is statutorily set as “the Tuesday next after the first Monday in the month of November” where the earliest possible date is November 2, and the latest possible date is November 8 (as it was for the 2016 election). See a timeline of the 2016 election for 2016’s dates.Can The Electoral College Stop Donald Trump? A look at how the Electoral College works in practice.
TIP: There are multiple movements underway to change the electoral college (including a petition on MoveOn.Org to abolish it) or to lobby the electors to change their votes before December 19th (including a petition on Change.Org). Learn how to change the electoral college, and why we should or should not.
FACT: Brexit was also an advisory vote. Both Tump and Brexit represent the will of a portion of the west who is pushing back against change. But the Republican nature of Britain and America allows our governments to override the vote none-the-less. In both cases, it is what our forefathers intended, and that fact means no one should take it lightly.
FACT: As noted above, this means Trump wasn’t officially elected on November 8th, 2016. The electoral college cast the deciding vote on December 19th. A win by “faithless elector” is very unlikely in any election, but it is possible and Constitutional. However, it is traditional to follow custom in any election cycle.
FACT: D.C. and 48 states have the “winner-takes-all” rule for the Electoral College. That means in 48 states and D.C., state-based electors, which have been appointed to their position by state officials or election (this process differs by state), generally vote with the popular vote as a matter of state-based rules and custom. However, 21 states do not have laws that compel their electors to vote for a pledged candidate, and 8 allow it but fine the elector. Thus, there are a total of 29 states where electors can switch their votes. The 29 state number is based on state-based rules. The rest of the process can be confirmed on archives.gov. See Presidential Election Laws and The 2016 Presidential Election.
The electoral college works like this, with dates subject to change (2016 dates are used as example):
- Each citizen may vote in their state on November 8th. This vote advises the electors.
- To make the election official, on December 19th electors meet in their state and vote for President and Vice President on separate ballots. This is a direct vote for the President and Vice President. At this step, “faithless electors” can theoretically upset the popular vote by voting against the state majority in states that don’t ban the process.
- Lastly, on January 6th, Congress meets to count the official electoral votes.
- Whoever gets a 270 vote majority out of the 538 electoral votes on January 6th, not November 8th, wins. If there is no 270 majority, the House of Representatives decides the next President.
The popular vote is an advisory vote, and state-based electors can change their pledged votes in 29 states thus changing the expected outcome of the election. This could theoretically result in a win for Clinton, who won the popular vote or even a third party candidate if both are deprived of 270 electoral votes and if the House decided to go rogue.
When you consider how close the 2016 race was and how divided the country is politically, no one should be counting their chickens before January 6th, 2017. 99% of the time electors have voted as pledged, but 1% of the time they haven’t. No election has been changed by this, but the Constitution and the intentions of the founders allow the country to upset expectations.
- Electoral vote: Clinton 232 vs. Trump 306 (270 to win)
- Popular Vote: Clinton 65,788,583 votes vs. Trump
As you can see, Clinton lost the election even though she won the national popular vote by almost 3 million votes. The Electoral College is meant to give extra weight to the less populous states. In America, the less populous states tend to be Republican. As you can imagine, after yet another win by electoral vote where they lost majority, the chances of them wanting to change the system are zero-to-none.
TIP: Although these aren’t the final totals, you can see that Clinton won the popular vote but lost the electoral vote on November 8th. We will have to wait until at least January 6th to see if the electors vote as expected.
FACT: Although it is correct to call Trump the President-elect, he does not officially get the title until he is confirmed by the vote on January 6, 2017. The new President officially becomes President after being sworn in on January 20th at noon on Inauguration Day.
TIP: Our founders purposely set up this Republican form of government. They wanted a few extra lines of defense ready in case the public was about to vote in a despot or tyrant. We get the tradition from Britain, where in a similar situation, their Brexit was an advisory vote. Still, in both cases, tradition is expected to be respected, and it is likely that Brexit and Trump will stand because of this.