This post has been updated.
Here's a wrinkle in the electoral math on Tuesday: What if we told you that 270 electoral college votes wouldn't be enough to elect Hillary Clinton president?
That appears to be the situation, after in recent days one Democratic elector in Washington state said he won't vote for Clinton and another in the same state said he won't commit to doing so -- meaning that if Clinton, the Democratic nominee, wins Washington state, she may have to win at least 272 electoral votes nationwide. The Seattle Times has the details:
“No, no, no on Hillary. Absolutely not. No way,” said Robert Satiacum, a member of Washington’s Puyallup Tribe who had supported Vermont Sen. Bernie Sanders as the Democratic presidential nominee.
He had earlier told various media outlets he was wrestling with whether his conscience would allow him to support Clinton and was considering stepping aside for an alternate elector. But on Friday, he sounded firm, even if the election is close.
“I hope it comes down to a swing vote and it’s me,” he said. “Good. She ain’t getting it. Maybe it’ll wake this country up.”
Bret Chiafalo, a Democratic elector from Everett who is also a Sanders supporter, said he is considering exercising his right to be a “conscientious elector” and vote for the person he believes would be the best president.
“I have no specific plans, but I have not ruled out that possibility,” he said.
This actually isn't even the first time this has come up this election cycle. In August, a Georgia Republican elector also announced that he might not vote for Republican nominee Donald Trump, citing his status as an immigrant and Trump's immigration policies. He later resigned. And later that month, a Texas GOP elector threatened to do the same but quickly walked it back.
All of these probably would have come into play and deprive Trump and Clinton of electoral votes, given Trump is favored to win Georgia and Texas, and Clinton is almost sure to win Washington state on Election Day.
But how can this happen? And is there any recourse? Back when the potential "faithless elector" in Georgia cropped up, we put together a little explainer. Below, we've updated it.
First, it bears noting that these comments are striking because the electors are talking about withholding votes before the general election is even concluded — apparently trying to send a message. This is certainly a sign of the times and the unhappiness with the two major-party nominees.
But even faithless electors writ large are exceedingly rare.
According to the voting reform group FairVote, there have been 157 faithless electors in American history. About 45 percent of those electoral votes were changed because the candidate died before the Electoral College voters were tallied. Among the rest, three electors chose to abstain, while 82 voted for a candidate other than the one they were required to support. That's fewer than two true faithless electors per election, given that we've had 57 presidential elections.
The last time we had a faithless elector in a presidential campaign was more than a decade ago -- in 2004 -- and it might have been a mistake. In that case, an anonymous Minnesota elector voted for John F. Kerry's running mate, then-Sen. John Edwards (D-N.C.), rather than Kerry. It was widely thought to be an error rather than a protest vote.
Before that, D.C. elector Barbara Lett-Simmons in 2000 abstained from voting for Al Gore, citing the District's lack of voting representation in Congress. In 1988, a West Virginia Democratic elector did what the Minnesota elector did and cast a ballot for vice-presidential candidate Lloyd Bentsen rather than Michael Dukakis for president. In 1976, an impatient Washington state Republican voted for Gerald R. Ford's primary opponent, Ronald Reagan, instead of Ford. Richard Nixon lost one elector each in the presidential elections of 1960, 1968 and 1972; all of them went not for the Democratic nominees but for other options.
The Georgia and Texas electors did have the right -- in their states, at least -- not to vote for the person who wins their state's electoral votes. But Satiacum and Chiafolo both face a $1,000 fine in Washington if they don't vote for Clinton. This is telling; some states have no legal requirement preventing faithless electors, while others do -- but the penalties are usually small, including fines, and generally aren't enforced.
Although the Constitution does spell out the details of the Electoral College, it does not weigh in on how electors are supposed to vote. According to the National Archives, the Supreme Court has said that political parties may require electors to take pledges to vote for a particular candidate, but it has not weighed in on whether penalties for breaking that pledge are constitutional.
Georgia and Texas are two of 21 states without faithless elector laws. The other 29 and the District do have such laws, but no faithless electors have ever been prosecuted, according to the Archives.
A big reason nobody has been prosecuted is because faithless electors have never changed the outcome of a presidential election. Which brings us to ...
In a word, yes. But it's unlikely.
Given that we are just talking about a loss of one or two electoral votes out of 538 for both Trump and Clinton, their margins of victory would have to be very narrow. And assembling a realistic combination of states that gets either of them to 270 or 271 electoral votes -- the number where one or two faithless electors who prevent them from actually hitting 270 -- is very tough.
Over at the Moritz College of Law at the Ohio State University, Edward B. Foley assembled a couple instances in which Clinton would win with 270 electoral votes. But one of them involves Trump winning Florida and blue-leaning Colorado and Wisconsin but losing red-leaning Arizona, while the other has him losing Florida while winning blue-leaning Pennsylvania and Virginia.
And even if there were more faithless electors, the number of realistic scenarios under which they would actually matter are few.
In addition, falling below that 270-electoral-vote threshold probably wouldn't hand the election to their opponent; for reasons we'll discuss, it would almost definitely instead force the House to make the final call.
But will it be just one or two faithless electors? There have been cases in which groups of faithless electors joined forces, although it has been more than a century since the last instance. In 1986 and 1912, groups of four and eight electors, respectively, voted for vice-presidential candidates other than the ones they were pledged for. In 1872, 63 Democratic electors declined to vote for Democratic nominee Horace Greeley, who died after Election Day.
In fact, the only time that faithless electors could have changed the outcome of a presidential election was for vice president, and it was a long time ago.
In 1836, 23 Democratic electors from Virginia declined to vote for Richard Mentor Johnson for vice president because of his relationship with a black woman, leaving him shy of a majority. But the Senate, which is tasked with resolving vice-presidential elections in which no candidate gets a majority of the electoral votes, made Johnson vice president anyway.
It has been 180 years since a conspiracy to stop a presidential or vice-presidential candidate from taking their rightful victory in the electoral college has truly been hatched.
But there's very good reason for that, and it's the same reason Republicans didn't really try to stop Trump from taking the GOP nomination at their convention in July: It would be overturning the will of the voters.
There's also the fact that faithless electors almost never cross over and vote for the other candidate. Almost all of the faithless electors described above voted for either another member of their own party or for a third-party option — not the other major party's presidential or vice-presidential nominee. The Texas elector was the only one of this year's potential faithless electors who has talked about possibly crossing over, though again he quickly reversed course.
So if a candidate — whether Trump or Clinton — lost the electoral college majority because of faithless electors, it doesn't necessarily mean the other candidate wins. It's much more likely that the House would decide (the Senate gets to resolve undecided VP races, but the House gets to pick a president if nobody gets a majority).
There certainly have been situations in which faithless electors could have changed the outcome of the election; given George W. Bush's five-electoral vote win of 271 to 266 in 2000 -- it was 271 to 267 before the D.C. elector's abstention -- only two electors would have had to change their votes to throw the race to the House, and three crossovers (which again, are very, very rare) could have made Gore the president.
But the likelihood that the 2016 election would be close enough for faithless electors to make a difference and that there would be enough of them to actually change that outcome makes it a remote possibility. And if it got to that point, they'd probably think pretty hard about being labeled as the people who overturned the result of a presidential election.