At last count on Wednesday, Donald Trump held 290 electoral votes. He needs 270 to retain his hold on the White House. Hillary Clinton, despite losing the Electoral College (EC), won the popular vote by approximately 200,000 votes.
Based on that, many Americans are saying that this proves that the EC isn’t “fair”:
Hillary: 59,236,903 votes
Donald: 59,085,787 votes
The people elected Hillary, the system elected Donald
— George Takei (@GeorgeTakei) November 9, 2016
Gore won the popular vote. Hillary won the popular vote. Wouldn't it be nice if that meant something? https://t.co/xe16FbNa8b
— zoe kazan (@zoeinthecities) November 10, 2016
The irony is that at this point, the EC may be their only hope.
There is a little-known loophole in the EC that could still place Clinton in the White House: the “faithless elector.”
This phenomenon, which allows electors to vote their consciences in place of their pledges when they deem it necessary, was explained by Alexander Hamilton in Federalist 68:
“The office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”
The EC will cast the final votes for president on December 19th, in their respective states. As you can see, Hillary fans are getting their hopes up about it:
— Lisa Brenner (@LisaBrenner212) November 10, 2016
— Dyann Green (@DyannGreen) November 10, 2016
And while there is the possibility that the electors could go rogue, these wishful thinkers might want to note that 99% of electors throughout our nation’s history have voted as pledged.
FairVote.com explains the history of faithless electors:
“Since the founding of the Electoral College, there have been 157 faithless electors. 71 of these votes were changed because the original candidate died before the day on which the Electoral College cast its votes.
Three of the votes were not cast at all as three electors chose to abstain from casting their electoral vote for any candidate.
The other 82 electoral votes were changed on the personal initiative of the elector.”
The last time an elector voted against his pledge was in 2004, when one elector voted for John Kerry’s running mate, John Edwards, instead of Kerry. His vote, like the votes of every other faithless elector in American history, had no effect on the outcome of the election.
Faithless electors are technically barred from voting against their pledges in 29 states, but the penalties are minimal — they include fines of up to $1,000 — and no elector has ever been prosecuted.
Despite that, any number of rogue electors could theoretically balk and instead of voting for Donald Trump as pledged, cast a vote for Hillary Clinton. If enough electors were to become “faithless,” Clinton would win the EC and the presidency.
But according to Bustle.com, the likelihood of enough electors becoming faithless in this election is fairly slim:
“This year, as TIME magazine reported, there were four faithless electors who were outspoken about going rogue — two identified as Republican, and two as Democrats.
So what does that mean? While four faithless electors would make a difference in a tight Electoral College race, that’s not what we’re looking at right now.
The electoral votes coming in so far show 233 for Clinton and 305 for Trump, in which case, it’d be unrealistic to think there would be enough electors to unexpectedly do a complete turn-around and put a dent in the outcome.”
In addition, the final EC vote is subject to approval by Congress on January 6th. Even if the EC does secure the election for Clinton, Congress — which is still controlled by a Republican majority — would most likely overturn their vote.