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So with Donald Trump declared the next (45th) President of the United States of America this week, a lot of people are unhappy to say the least. And the discussion of the role and purpose of the electoral college has come up in many conversations.

Long story short Hillary Clinton won the popular vote, but Donald Trump has received the majority of electors.

But concept of electors becoming “faithless electors” has come up and according to some and quoted in the above linked article:

However, there is nothing stopping any of the electors from refusing to support the candidate to whom they were bound or by abstaining from voting.

Another article in The New York Times elaborates on the concept and obligations of the electoral college as well and this page on the website for the National Constitution Center as well quotes relevant passages from the Constitution. More observations and analysis from Time magazine.

So the question is: Is this truly legal? Or is this all pie-in-the-sky hopes put forth by people who are hoping against all hope that Donald Trump won’t be the 45th President of the United States of America?

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    It's legal but it isn't done. – gnasher729 Nov 10 '16 at 14:08
  • @gnasher729: According to en.wikipedia.org/wiki/… it's done pretty regularly. – Nate Eldredge Nov 10 '16 at 14:21
  • I wouldn't get my hopes up. Trump will have 306 votes, so 37 electors would need to switch, with none of Hillary's switching. Furthermore, as you can see at the top of the Wikipedia page (en.wikipedia.org/wiki/Faithless_elector), most states have laws making it a crime for an elector to vote against the state's decision. If you count Trump's votes in states where it's illegal to be a faithless elector you get... let's see... about 130. That means 176 could switch, of which 37 would be ~21%. In the 21 states with no laws on this, Trump won significantly (>5% margin) in 16. – Patrick87 Nov 10 '16 at 14:44
  • @Patrick87 If you could form that comment into a slightly more fleshed out answer that addresses the core of the question (the legality), I will gladly up-vote that. – JakeGould Nov 10 '16 at 15:01
  • @NateEldredge: The last one likely by mistake, and none in a way that changed the election result. – gnasher729 Nov 10 '16 at 16:05
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About half the states have some law against faithless electoring.

It turns out that the existing laws are toothless since they are not enforced but it's also not clear how often those laws have been put to the test. In Minnesota, the elector's ballot is invalidated and a random alternate is selected (except if the presidential candidate has died or become mentally defective).

Washington fines a faithless elector $1,000 and it is possible that we will see a couple of them at voting time, though it would be moot.

In Ray v. Blair, 343 U.S. 214 it was observed that such pledges may be unenforceable, that is, there has to be a statutory means of enforcement as there is in Washington and Minnesota.

  • Thanks for the succinct, yet detailed answer. Exactly what I expected. – JakeGould Nov 11 '16 at 2:25
  • To be clear, the sole remedy of such laws would be to punish the faithless elector, not to invalidate the faithless electoral vote. – ohwilleke Nov 11 '16 at 5:12
  • Well, there is Minnesota where the vote is invalidated, but I haven't checked to see if that option is pursued elsewhere. – user6726 Nov 11 '16 at 5:19
  • Isn't it something a little like jury nullification, though, in that the law can say whatever it wants but an elector can still vote for whoever he or she wants, and the Constitution will count that vote? – aidanh010 Nov 29 '16 at 14:40
  • Sorta like, though technically jurors aren't given a pre-determined outcome. – user6726 Nov 29 '16 at 15:43

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