Edward B. Foley, professor of law at The Ohio State University, is author of Ballot Battles: The History of Disputed Elections in the United States (Oxford University Press, 2016).

Dozens of heavyweight Republican politicians have by now fallen like dominoes and called for Donald Trump to step aside as the GOP presidential nominee, following Friday’s revelation of his lewd comments about kissing and groping women. Up in Trump Tower, meanwhile, the candidate has assured his supporters he will “NEVER DROP OUT OF THE RACE.”

If the anti-Trump momentum continues growing—and Trump holds his ground—is there anything that Republicans who oppose their nominee could still do to thwart him?


The answer is yes. The scenario is a bit far-fetched—it’s been aptly referred to elsewhere as a “Hail Mary” plan. But if there’s anything we’ve learned from this election, it’s not to discount the improbable. And if Trump’s prospects look so dim that Republicans think the party has zero shot at reaching 270 electoral votes by standing behind him as their nominee, they might decide that they have at least a better-than-zero shot by throwing that Hail Mary.

Here’s what would have to happen.

Regardless of whether Trump stays in the race—and certainly if he does—we can assume his name will be on the ballot in most if not all 50 states. It’s very late in the game for states to make changes to their ballots, especially since early voting has already begun in several states. But Republicans who cannot bring themselves to back Trump can pursue a way around this obstacle.

Imagine a situation in which virtually the entire GOP leadership has repudiated Trump publicly, and repeatedly has told citizens so through media coverage and an onslaught of TV ads paid for by wealthy super PACs. The Republican National Committee, Republican congressional leaders, even Trump’s running mate, Governor Mike Pence, could make the following case to Americans: Your ballot will still say “Trump,” but when you cast a vote for him, we are asking our Republican representatives in the Electoral College to cast their votes for another, agreed upon candidate. That could be any number of people: Pence, Mitt Romney, Paul Ryan, John Kasich—whomever the Republican establishment deems its white knight. For simplicity’s case, let’s call him or her “Other.”

From a legal perspective, what really matters for the final outcome of the election is not the names of the candidates on the November 8 ballot that citizens use to vote. What matters is what happens on December 19, when, under the Constitution, all the presidential electors from the Electoral College will meet in their respective states to cast their official votes for president. Remember it’s the electors, not the citizens, who vote for president. Citizens just vote for electors.

The 50 states have differing laws governing how an elector is required to vote. In some states, if Republican electors were to go rogue and cast their votes for Other, rather than the official Republican nominee on the ballot, they might be in breach of state law. However, the Electoral College has no internal enforcement mechanism to stop such breaches: It is the electors’ votes as they cast them that get sent to Congress, according to the Twelfth Amendment of the Constitution. So as long as there is no debate as to who a state’s electors are, because they were the ones appointed as a result of the citizens casting ballots on November 8, then whatever results these electors send to Congress are constitutionally the decisive votes for president. There is no stopping the electors from sending to Congress their votes for Other, if that’s what they decide to do.

Now, if 270 or more electors cast their official votes for Hillary Clinton, as is becoming increasingly more likely, the GOP is out of luck. She will become the president-elect on January 6 under the explicit words of the Twelfth Amendment: “the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed.” At that point, it is constitutionally irrelevant whether the rest of the electoral votes are cast for Trump or some Republican alternative. (This assumes that Congress, as it is required to do under the Twelfth Amendment, honors the choice that the electors make on December 19; even in this strange and unpredictable election year, I think that’s a safe assumption.)

But what happens if, hypothetically, Clinton falls short of 270 electoral votes on December 19? Say she stumbles badly in a debate or there’s a new damning document dump from Wikileaks or Republican and independent voters, even those who dislike Trump but who care more about defeating Clinton, can’t bring themselves to vote for the Democratic ticket in high enough numbers.

It is conceivable that the votes cast for “Trump” on November 8 would be a combination of two distinct types: (1) diehard Trump supporters who still want him as president and hope that the GOP electors vote accordingly; and (2) Hail Mary supporters who cast ballots for Trump’s ticket hoping, based on the much-publicized plan, that the GOP electors will choose Other instead of Trump. Then, the two types of Trump votes would both count toward appointing the GOP’s slate of electors. Any state in which the sum of votes from these two types of voters is greater than the number of votes for Clinton will duly appoint GOP electors for that state. If the GOP then manages to amass at least 270 electoral votes, there are a few possible scenarios to analyze, as follows.

Scenario 1: Trump wins 270 Electoral College votes.

Despite the Hail Mary effort, the GOP electors could stay faithful to Trump. Under this scenario, only step one of the Hail Mary plan is successful: It could achieve the goal of getting 270 GOP electors but fail at the crucial second step of convincing these electors to abandon the candidate to whom they originally were pledged. If 270 electors vote for Trump on December 19, then under the Twelfth Amendment, Congress is supposed to recognize him on January 6 as the president-elect. That’s true regardless of what citizens were led to believe about their November 8 votes. After all, it’s what the electors actually do that controls the outcome of the election.

Scenario 2: The “Other” GOP candidate wins 270 Electoral College votes.

But maybe the Republican electors would do as requested according to the intention of the Hail Mary plan. If on December 19, 270 or more GOP electors cast their votes for Other, then those votes are sent to Congress. Again, if there is no dispute that the electors who sent these votes were duly appointed in their states, then the Twelfth Amendment requires Congress on January 6 to count these electoral votes as they were cast by the electors. If Congress obeys this constitutional command, then Other would be the president-elect and inaugurated as president on January 20.

Since we are contemplating unexpected contingencies in this most unusual presidential election year, we need to consider at least the possibility that Congress might disobey the explicit constitutional command set forth in the Twelfth Amendment. To be sure, if Republicans in Congress control both the Senate and the House, and they were part of the GOP leadership that developed the Hail Mary plan, then they would most likely be happy to count the electoral votes for Other. In this situation, there would be no constitutional disobedience in Congress, and the Hail Mary plan would be fully successful.

By contrast, if the Democrats control the Senate, they could attempt to scuttle the Hail Mary plan on January 6, when Congress meets to count the electoral votes from the states. It’s not that they might want to defend Trump’s claim to the presidency—Democrats would surely prefer a President Pence, Romney, etc. to a President Trump. But, being in control of the Senate, they might see a window for installing Tim Kaine as acting president for as long as enough Republicans in the House are loyal to Trump, rather than getting on board with the Hail Mary plan. (And who knows, given the political dysfunction in Washington, maybe that internecine stalemate within the GOP would last all four years of the next presidential term, keeping Kaine as acting president until January 20, 2021?) To understand how the Democrats could attempt this ploy, we need to think about two more scenarios: one in which no candidate has 270 or more electoral votes, and another in which it’s debatable whether a particular candidate has reached the magic number of 270. So, let’s take a deep breath, and contemplate each of these procedural complexities in turn.

Scenario 3: Neither Trump nor Other wins 270 Electoral College votes.

Here we are imagining that the GOP leadership is trying its Hail Mary plan, but it doesn’t quite succeed exactly as intended. Yes, there are 270 or more GOP electors on December 19—the plan succeeds to that extent. But not all the electors follow the plan. Some are still loyal to Trump and cast their electoral votes for him, but it’s not enough to give him 270 votes. Yet there also aren’t 270 Electoral College votes for Other. Instead, no candidate reaches 270: not Clinton, not Trump, not Other.

What happens then? Under the Twelfth Amendment, if on January 6 it is clear than no candidate has 270 electoral votes, then the House of Representatives picks the president among the three candidates with the most electoral votes: Clinton, Trump and Other. The Twelfth Amendment requires that the House vote by state delegation, with each state having one vote regardless of its delegation’s size. Importantly, it takes an absolute majority of all states—26—for the House to effectuate a choice; a simple majority of the states that vote is not enough. That’s a high bar, especially given that any state delegations that are evenly split between the two parties might be forced to abstain from the vote.

If the Republicans in the House solidly control 26 state delegations, and if the Republicans in those states have uniformly decided to abandon Trump, then they could exercise their constitutional authority under the Twelfth Amendment to elect Other as president. The key point is: Republicans would not need all of the GOP electors to have defected from Trump to Other. As long as there are 270 or more GOP electors in total—in other words, more Republican electors than Democratic electors—the Republicans in the House can choose Other, even if Trump has more electoral votes than Other. Under the Constitution, the House has the last word, if a majority of state delegations vote this way. (This actually happened back in 1824.)

On the other hand, if no candidate gets 26 states in the House by noon on January 20, then, under the Twentieth Amendment, the new vice president becomes the acting president until the House manages to reach 26 states for a candidate. Who would the new vice president be? That would depend on a couple of things. First, it’s conceivable that Pence could receive 270 electoral votes for vice president even if neither Trump nor Other receives 270 electoral votes for president. That would happen if all the electors choosing Trump for president and all the electors choosing Other for president—a total of at least 270—also chose Pence for vice president. If so, then Pence constitutionally would be vice president. On January 20, he would become acting president if neither Other nor Trump nor Clinton has obtained the magic number of 26 states.

If Pence fails to reach 270 electoral votes for vice president, and assuming that Tim Kaine also does not reach 270, then the Senate is supposed to pick between Pence and Kaine for vice president at the same time as the House is choosing among Trump, Other and Clinton for president. If the Republicans control the Senate and pick Pence, then he constitutionally becomes vice president on January 20 and, if necessary, acting president for as long as the House has failed in its simultaneous duty to pick the president. But if the Democrats control the Senate, then they would likely pick Kaine, and he would become vice president and potentially acting president while the House remained stymied.

Scenario 4: It is unclear whether Trump or Other has won 270 Electoral College votes.

If all of this wasn’t bizarre enough, there’s more: It’s the situation in which there are plausible claims that both Other and Trump have won 270 electoral votes, and Congress must resolve the dispute. This situation starts off in the same way as Scenario 2: The Hail Mary plan works insofar as 270 or more duly appointed electors on December 19 cast their electoral votes for Other and send these votes to Congress. But—and here’s the big but—for each of these electoral votes, Congress could receive an alternative submission that those electoral votes really belonged to Trump and should be counted for him instead of Other.

How might this happen? Trump supporters in each of the states that cast Electoral College votes for Other could find some state official to send a separate set of electoral votes from the same state. In Pennsylvania, for example, it might be the state’s Democratic governor, who wants to deprive Other—the Republican’s Hail Mary choice—of reaching the magic number of 270. So he signs a certificate saying that, under state law, the state’s duly appointed electors were not permitted to vote for Other but instead were required to vote for Trump, and as governor he is submitting to Congress a second, “corrected” set of electoral votes from the state. Congress then would be required to choose between the two submissions from Pennsylvania: one submission from the electors themselves casting their votes for Other, and the other submission from the governor purporting to correct these electoral votes so that they are cast for Trump. (A version of this happened in 1876, with respect to the electoral votes from Oregon, and Congress was forced to chose between the two submissions.)

How would Congress make this choice? This is the most convoluted part of the story, as it involves the arcane, complex and arguably unconstitutional procedures of the Electoral Count Act of 1887. I’ve written about that morass previously, and I won’t repeat all the details here. What’s most crucial is whether the GOP controls both the House and Senate, or just the House. (I’m assuming here that Democrats don’t take back the House.) If the GOP controls both chambers, then under the Electoral Count Act, the Senate and House would likely agree to count Pennsylvania’s submission containing the electoral votes for Other, and reject the alternative submission purporting to contain electoral votes for Trump. If this happens for each state in the same situation as Pennsylvania—in other words, both chambers accepting the submission from the state that gives the state’s electoral votes to Other—Other would become president.

But if Democrats control the Senate, all bets are off. Under the Act, crazy things could happen, including the governor of any disputed state deciding whether Other or Trump gets that state’s electoral votes. So maybe in Pennsylvania, the Democratic governor picks Trump, for the strategic reasons described above (hoping to maneuver Kaine into the role of acting president), while next door in Ohio, Governor John Kasich, well known to be hostile to Trump, picks Other. If the governors in the disputed states split their decisions in such a way that neither Other nor Trump ends up with 270 electoral votes, then we are back to Scenario 3.



***

If you have made it to the end of this, your head might be spinning, aching or both. It all seems so strange as to be pure fantasy. But think back before this presidential election. So much of what has transpired would have been dismissed as lunacy if any one had dared to predict what actually has happened. Of course, the very nature of a Hail Mary is that it’s likely to fail. But with all that’s occurred so far in this campaign, no one should be surprised if on December 19 some electoral votes are cast for Other instead of Trump. It’s just a question of how many, and whether Clinton has 270 electoral votes of her own. At this point, the odds are that she will get there. But in this election, the safest bet is never to be sure of anything.