As the electoral college prepares to meet on Monday to formally elect the next US president, an attempt by activists to overturn Donald Trump’s victory has brought renewed attention to the unique, albeit convoluted, method by which the United States elects its president.

The process, which was so complicated that it had to be reformed by constitutional amendment less than 20 years after the constitution was signed, can still be hard to follow and is governed as much by precedent and history as by the constitutional text.

Electoral college rebels speak out on a last-ditch hope to stop Trump Read more

Is Donald Trump the president-elect?

Technically no but to all intents and purposes, yes. The formal election of the president doesn’t happen until Monday 19 December when the electoral college meets and electors will cast their ballots. Those votes get formally counted on 6 January in a joint session of Congress.



So Trump could still lose the election?

It is theoretically possible – if extremely unlikely. The 12th amendment of the constitution provides that if any candidate for the White House gets a majority of the electoral votes, they become president. Currently, if every elector were to cast his or her ballot in accordance with the election results, Trump would receive 306 electoral votes and Clinton 232. The electoral college has 538 members, meaning 270 votes are needed to win. This means that to stop Trump from attaining this goal, at least 37 elected Republican electors have to defect. So far only one has said he intends to do so.



Who would they defect to?

Some of those seeking to thwart Trump, like Harvard law professor Larry Lessig, who was briefly a fringe Democratic candidate for the presidency in 2015, have urged Republican electors to back Hillary Clinton, since the former secretary of state won the popular vote. However, as Vik Amar, a constitutional law expert and dean of the University of Illinois law school, told the Guardian: “We just don’t know whether Clinton would have got more votes if that had been the name of the game at the outset.” (Trump has made a similar point, tweeting: “If the election were based on total popular vote I would have campaigned in NY Florida and California and won even bigger and more easily.”) Amar supports replacing the electoral college with a national popular vote, but he views the argument that electors should switch from Trump to Clinton because she won the popular vote as in effect changing the rules after the election.



Others, like the so-called Hamilton electors, a handful of Democratic electors from Washington and Colorado, are trying to urge fellow Democrats to support an alternative Republican. The group includes one former Bernie Sanders supporter who explicitly stated before the election that he would not support Clinton and another who was undecided about defecting before election day. Their hope is to unite around a Republican like Mitt Romney or John Kasich, neither of whom ran in the general election, as an alternative.

Wait, what if no one gets 270?

If no one gets 270 votes, the election is thrown to the House of Representatives, with the constitution requiring that body to choose “from the persons having the highest numbers not exceeding three on the list of those voted for as President”. Each state votes by delegation, and a majority is required to win. This means that California’s 53 representatives would combine to cast one vote, which would have the same value as that cast by Wyoming’s one representative. Of the 50 state delegations in the House, 17 have Democratic majorities, 32 have Republican majorities and one, Maine, is split. This means that significant Republican defections would be required in the House to defeat Trump and there is only one state won by Clinton which has a Republican majority in its House delegation.



How did this wacky system come about?

The 12th amendment was ratified in 1804 in the aftermath of a constitutional crisis. Before its passage, the candidate who finished first in the electoral college became president, and the second-placed finisher became vice-president. This led to a tie in 1800 when the Democratic-Republican nominee, Thomas Jefferson, and his running mate, Aaron Burr, each received 73 electoral votes. The framers had not anticipated candidates running as a ticket. Jefferson and Burr finished tied for first place while incumbent President John Adams finished third with 65 electoral votes. The election was thrown to the lame duck House then dominated by the opposition Federalist party. Many Federalists supported Burr, whom they perceived as more moderate. This created a stalemate that lasted until Alexander Hamilton intervened to persuade recalcitrant lawmakers to back Jefferson. The crisis prompted Congress to go back to the drawing board and separate the election of the president from that of the vice-president.

What’s stopping electors from voting for whoever they want?

Aside from the moral issues, which Amar notes includes that fact that no one voting on 8 November thought they were casting a ballot for “the unaccountable and unknown folks” who make up the electoral college, there are legal obstacles as well. Many states have laws that attempt to bind electors and impose criminal penalties if they vote for the candidate who did not win the popular vote in that state. Further, some states even deem the act of voting for an alternative candidate to be an effective resignation. An attempt to overturn Colorado’s law, which mandates electors vote for the state’s popular vote winner, was tossed out of federal court in the Rocky Mountain State on Monday as “a stunt”.



The so-called Hamilton electors cite the founding father’s words in Federalist 68, in which he describes the purpose of the electoral college to “afford a moral certainty, that 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”. In their opinion Trump doesn’t meet that bar. It is worth noting, however, that Hamilton was describing an age before universal suffrage in which voters did not vote for members of the electoral college in many states. Further, the method of election that Hamilton was describing has long since been changed by the 12th amendment.

So, Trump is going to be president?

Yes.

