How Republicans Could Stop Trump (and Clinton)

Many, if not most, elected Republicans have fallen into line behind Trump, who is now within striking distance of the White House following last week’s convention bounce. However, some Republican officials have given lukewarm endorsements, rejections, or are trying to remain neutral. There are still many possibilities for gaffes and scandals between now and November that could make them wish there was a way to elect someone else, other than Trump, but without letting the opposition win.

Well there is, at least according to the U.S. Constitution. The rules for the “Electoral College” say that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” All states currently appoint electors by the manner of public elections, but this was not always the case, and the U.S. Supreme Court has recently affirmed that it need not be (“The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.” Bush v. Gore, 2000). If one or more “swing states” were to change state statutes so that the electors were appointed (say by the governor or by the legislature), this could change the outcome of a close election. A candidate must win an absolute majority, not just a plurality, of electoral votes. If there is no majority winner, the House of Representatives, voting by state, makes the selection among the top three candidates.

To give a concrete example: if Ohio Republican Governor Kasich, still a firm Trump opponent, could convince his Republican-controlled legislature to change its election laws to direct appointment of electors, those 18 votes alone could make a difference in a close election, depriving either Trump or Clinton from receiving a majority of electoral votes. The election would then go to the U.S. House, where Republicans currently control 36 out of 50 state delegations in the House (with two more evenly split). Although the newly elected House would decide (in January 2017), it is highly likely that the Republicans would retain their majority of the state delegations  and thus would be able to pick the winner. Since they could pick among the top three, they could elect any candidate who had been named by the Ohio electors (say, for example, House Speaker Paul Ryan).

In many ways this scenario is far-fetched: it assumes that the Ohio Legislature would pass a law removing the right of Ohio citizens to vote for president (if only for one election). It further assumes that the election would be close enough so that the Ohio electors would be decisive in depriving any candidate from accumulating a majority of electoral vote. Finally, it assumes that Members of Congress would elect a president who had no received votes in the place of other candidates who would have received millions.

Still, there are some circumstances that could make this scenario plausible. If over the next few months Trump is the subject of criminal investigations, or makes statements that are even too much for his Republican supporters (such as his call today for Putin to spy on American citizens), he might become too much of a liability. On the other hand, if he sinks too far in the polls, the 18 Ohio electors alone may not be sufficient to deprive Clinton of a majority. Some other states might in extreme circumstances be willing to take the presidential decision out of the hands of their voters: Michigan, Nevada, and Wisconsin are all swing states under complete Republican control whose governors have supported Trump tepidly or not at all. Pragmatically, these Republicans could elect a Republican President who is not Trump. They could claim legitimacy by pointing to polling data showing that most people do not like either Clinton or Trump. Republicans have shown increasing willingness to play Constitutional Hardball, most recently by denying President Obama the opportunity to make a Supreme Court appointment. Still, it would be a gutsy move, and one likely to induce significant political blow back–and perhaps future constitutional amendments.

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