Donald Trump, Hillary Clinton, Joe Biden, and a Disrupted Electoral College: High Unfavorable Ratings, Multi-Candidate General Election Ballots, and Pursuing the ‘Art of the Deal’ with Free-Agent Electors in December 2016
3 Syracuse Journal of Law & Civic Engagement 1 (2015)
36 Pages Posted: 4 Dec 2015
Date Written: December 4, 2015
Hillary Clinton and Donald Trump could not be more different. Clinton worked hard to become the nation’s quintessential political insider. Hillary Clinton’s latest labors include: U.S. Secretary of State, U.S. Senator, accomplished attorney, and a policy-engaged First Lady of both America and Arkansas. In proposing economic and social reforms, Clinton pragmatically promises “a fair shot” for all Americans. Life experiences have taught the Yale Law graduate to judiciously weigh each public comment and every private action.
In stark contrast, Donald John Trump is the anti-politician, bombastic billionaire who boasts of unspecified plans to “Make America Great Again.” Large crowds cheer Trump’s conflicting retro-Reagan optimism and exceptionally harsh invective. Trump is increasingly more George Wallace than Ronald Reagan; his outbursts against establishment politics and undocumented immigrants have few limits. Trump’s raw message particularly resonates with those Americans who have stomached a decade of economic loss and social displacement. It is an American paradox that billionaire Trump so effectively channels George Wallace’s blue-collar, everyman appeal and message.
Hillary Clinton and Donald Trump do have something in common - exceptionally high unfavorable poll ratings. In a multi-candidate general election, however, high unfavorable numbers are not prohibitive. Most states have implemented a plurality winner-take-all tabulation method for the so-called “Electoral College.” The candidate that receives the largest plurality percentage of a state’s popular votes is awarded all the state’s Electors. There is no minimum plurality required for winner-take-all victory.
In a very close three-person contest, the presidential candidate receiving a thirty-four percent plurality victory would be awarded all the state’s Electors. Sixty-Six percent of the state’s voters can vote against a candidate - yet that candidate wins all the state’s electors.
Regardless of how many candidates’ names appear on the states’ November ballots and/or what the result is of each state’s popular-vote count, each state legislature will retain the constitutional option to directly appoint their state’s slate of Electors. Whether selected by state popular vote or directly appointed by a state legislature, it is only those 538 Americans, who hold the unique constitutional office of Elector; it is only those Americans who have a real vote to select our 45th President in 2016. The real presidential election does not take place until December 14, 2016 when the appointed or selected Electors vote in their respective states. In this most peculiar of election seasons, will candidates and their non-coordinating Super PACs seek to directly engage with Electors to ask - and even negotiate with - these 538 individuals for their December vote?
This Essay explains the operations of our Republic’s arcane and enigmatic Electoral College. The Essay focuses on the Constitution’s grant to state legislatures of absolute control over Elector appointment; on the 48 states’ winner-take-all plurality tabulation method; and on the independent, free-agent constitutional status of all 538 Electors who will vote for President on December 14, 2016. Also referenced is the Constitution’s even lesser-known fallback presidential selection system. In the event that no candidate receives a majority of the Electors’ votes when the Electoral College are announced in January 2017, the newly-convened 115th U.S. House chooses the President, and the U.S. Senate selects the Vice President.
The 2016 election year may be the beginning of the end for the antiquated, malapportioned Electoral College - described by Donald Trump November 2012 tweet as “a disaster for a democracy … a total sham and a travesty.”
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