Is there a way to block an elected President from entering office?
Given the recent results on the national election at the US. I have seen several protests here at Berkeley and the Oakland area. While I understand their disgust and definitely do not agree with Trump's ideology or his ideas during the campaign, I am wondering whether there exists any legal option to prevent him from becoming president? I am asking this, because if there is no such option, I have troubles seeing what is the final objective of these riots and marches against Trump.
At this point, it isn't clear what you are asking. Are you asking what legal options exist to prevent a President-Elect from becoming President? Or are you asking about the causes or motivations of these kinds of protests?
I guess both. I would assume the protesters go out to the streets to prevent Trump from becoming president, somehow. If they cannot avoid Trump from becoming president, then what other causes or motivations could they have?
See this link, part of this has been answered http://politics.stackexchange.com/questions/12750/what-are-donald-trumps-legal-options-if-he-loses-the-presidential-election/12751#12751
@KDog yes there is. we have not yet elected him and until we do he is not president. This is part of the representative process. nobodys vote does anything to elect the president directly and the people that we do elect can change their minds and cast a ballot for someone else.
@indigochild I doo not see it as unclear even a little bit. "I am wondering whether there exists any legal option to prevent him from becoming president?" that is the question and "I am asking this, because if there is no such option, I have troubles seeing what is the final objective of these riots and marches against Trump." that is why it is being asked "I have seen several protests here at Berkeley and the Oakland area." that is what triggered everything in the first place.
Let's assume the electoral college votes according to the dictates of the states they represent. Now, let's say the electorate votes Trump in, but somehow, America prevented Trump from being president...We show he did not meet the qualifications for birth citizenry, or age...then what happens is, Pence is elected Vice-president, and with the vacancy of the presidency, he immediately becomes president, then the new VP is selected. I do not remember the succession of VP.
According to my Constitutional law professor, the VP is actually elected. The ticket is selected together on the ballot, but is actually two votes.
That's in the normal election, @SensiiMiller. If the presidency is vacated _afterwards_, the _new_ president selects the _new_ VP. See the 25th amendment.
Even if they can't change who becomes president, a large and loud opposition to him can still have an effect, perhaps gaining other politicians to their side (esp. the ones in the houses), giving the populace a movement to get behind, making it more difficult for him to operate and implement the changes they are opposed to.
Suppose there was a way to prevent someone who, by all accounts, won the election, from entering office. There may be even short-term advantage to doing this. But the lasting damage to the republic will be devastating. Changing the rules after the game is over can only destroy public trust in the political system. Given that trust is already somewhat low, it could open the doors to the fall of the republic.
I am not a Trump supporter, but he won the election in accordance with the rules. Objecting to his actions & policies as a president are fair game, but looking for means to block the president elect is tantamount to subverting the democratic process.
@copper.hat You may wish to consult FactCheck.ORG before you allege that expecting the Electors to fulfil their sworn duty to the Constitution somehow “subverts the democratic process”. The US is a republic because the authors of our Constitution feared the very scenario we now find ourselves in. **In Hamilton’s words, they created a republic not a direct democracy to ensure *“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.”***
@tchrist: Having disgruntled factions dictate a result contrary to the popular election would constitute a subversion in my mind. Attempting to influence the Electors certainly does not smack of a representative democracy. Dragging feet rather than getting on board leaves the country in a persistent metastable state. Instead of niggling, we should pay more attention to The Simpsons.
@copper.hat If the Constitution had wanted us to have a popular election for the President, it would have specified that. It deliberately specified something else: election by the States’ Electors, or failing that, by the two houses of Congress. If Electors weren’t supposed to think, then we would not have them—we would directly elect the President by popular vote. We don’t do that under our current Constitution, but we could always change it to surrender to the tyranny of the majority if we thought that a good idea. It’s not “subverting the will of the people” to follow the Constitution.
@tchrist: I really don't follow what point you are arguing. The people have voted and now we wait for the Electors to vote. That is the way it works. Trying to influence the Electors after the popular vote is a subversion. I am not implying that the Electors should not fulfill their duty. I am saying that we should respect the vote as it stands and let the Electors do their job.
Title should be fixed to something like *"What is the purpose of people protesting, given an elected President can't be blocked from entering office?"*
Not to mention that Hillary Clinton won the popular vote, not only would the electoral college be following the Constitution to prevent an "man who is not in an eminent degree endowed with the requisite qualification" from entering office, it would also be supporting the will of the majority of voters.
As of today (November 9th), the United States have not yet elected a president. They have elected an electoral college, which will elect a president on December 19th.
Theoretically the electors could still change their mind and elect someone completely different. It is not unheard of that individual "faithless electors" vote different than mandated by the result in their state for whatever reason. In 21 states this is completely legal, and in many others the repercussions are minor. However you should not bet on this. Never in the history of the United States did enough electors do this to make someone else president than they should have. In 1836, 23 faithless electors for Virginia were almost successful when it came to electing the vice president. But that was the closest faithless electors ever came to changing an election outcome.
Another reason to protest against Trump now is to undermine his authority as president to convince Congress and Senate members to support him less in the upcoming years. A president can't do much without backing from Congress and the Senate. When a president suggests acts which are amazingly unpopular, party loyality might not be enough to prevent them from blocking them. So sending the message "We hate the president and when you let him do what he wants we will hate you too!" could have an influence.
There's no good, legal way to stop Trump from becoming President. There is, however, a terrible but still legal way:
Quoting https://www.archives.gov/federal-register/electoral-college/provisions.html (which itself is quoting the Constitution):
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
In other words, a state legislature does not appear to have an obligation to appoint electors based on the popular plurality vote, and this presumably applies even if an election has already been held.
According to https://www.archives.gov/federal-register/electoral-college/key-dates.html the states have until December 13th to resolve any disputes re whom to appoint as electors, and the electors ultimately vote 6 days later, on December 19th.
There are 6 states where Trump won, but only obtained a plurality of the vote, not a majority:
Florida (29 electoral votes): Clinton lost by 128,503 votes, and there were 293,802 votes for third party candidates. If 43.74% of them had voted for Clinton, Clinton would've won.
Pennsylvania (20 electoral votes): Clinton lost by 68,012 votes, and there were 212,508 votes for third party candidates. If 32.00% of them had voted for Clinton, Clinton would've won.
Michigan (16 electoral votes): Clinton lost by 17,386 votes, and there were 241,125 votes for third party candidates. If 7.21% of them had voted for Clinton, Clinton would've won.
Arizona (11 electoral votes): Clinton lost by 81,607 votes, and there were 94,917 votes for third party candidates. If 85.98% of them had voted for Clinton, Clinton would've won.
Wisconsin (10 electoral votes): Clinton lost by 26,889 votes, and there were 152,773 votes for third party candidates. If 17.60% of them had voted for Clinton, Clinton would've won.
Utah (6 electoral votes): Clinton lost by 125,851 votes, and there were 192,096 votes for third party candidates. If 65.51% of them had voted for Clinton, Clinton would've won.
Trump currently has 305 presumptive electoral votes, and Clinton has 233. If you could convince the state legislatures totaling exactly 36 electoral votes to exercise their option to appoint electors for Clinton, regardless of the plurality vote, Clinton and Trump would both have 269 electoral votes, which would force the election to the House of Representatives, with each state receiving one vote. Since Trump won 24 states by majority (not just plurality), he would only need 2 of his plurality states to still win the election.
If you could convince the state legislatures totaling more than 36 electoral votes to appoint Clinton electors, Clinton would win the election.
Convincing the Michigan legislature that at least 7.21% of the third party voters would've voted for Clinton if they knew that Trump would win otherwise, and that Clinton "should've won" might make it possible for them to flip their electors, giving Clinton 16 more electoral votes.
It's a tougher sell in Pennsylvania (32.00% of third party voters) but still maybe possible, giving Clinton another 20 elector votes, bringing us to the exactly 36 scenario above.
You'd then just have to convince one other state legislature (Wisconsin being most likely), and Clinton wins.
You could also try convincing these 3 states (or any of the others that voted Trump) that Clinton supporters were so confident that Clinton was going to win that they failed to vote, and that the "fairest" thing to do would be to hold another election, if they're not willing to flip votes outright.
Another possibility I'd considered is passing a Constitutional amendment (calling for another election or banning Trump outright), but that would ultimately require 38 state legislatures to agree, and, since Trump won 24 states by a majority, and even allowing for Clinton supporters who failed to vote, this is unlikely.
If someone's serious about doing this, the big push now would be to get Pennsylvania, Michigan, and Wisconsin voters to push their legislatures to at least consider appointing electors contrary to election results. A major factor would be third party voters saying something like "if I'd known, I'd have voted Clinton" or something.
Note: see https://github.com/barrycarter/bcapps/blob/master/ELECTION/README for how I made these calculations, sources, and possible errors. EDIT: (to answer some comments)
https://www.multistate.com/state-resources/legislative-session-deadlines shows that most states have long since ended their legislative sessions, but, in a remarkable coincidence, Pennsylvania and Michigan's legislative sessions are both still open. In Wisconsin, there would have to be a special session called.
The letter above is an example of "persuasive writing", and is intended to emphasize one point of view and to make speculative claims in favor of the author's position. It is not intended as an unbiased analysis. Most people write legislators with persuasive letters intended to support their position. I wrote the above in the tone of someone who desperately wants to avoid a Trump Presidency.
Even in the unbiased sense, I'm not claiming all third-party votes are really votes for Clinton. I'm stating (still speculatively) that: if third party voters were given a chance to vote again, knowing that the Trump/Clinton decision hinges on their choice, a sufficient minority (32% in Pennsylvania, smaller in Michigan and Wisconsin) would change their vote to prevent Trump from becoming President. I believe some (not all, and not even necessarily a majority) of third party voters believed that Clinton had the election locked up, and didn't realize their vote would effectively elect Trump. So, I'm not claiming third party voters all want Clinton, or even that a minority want Clinton. I'm saying that, given a choice between Clinton and Trump, and knowing their choice would actually decide the election, a minority would choose Clinton as the lesser evil.
My entire suggestion should not be taken too seriously. Although I'd love to see it happen (just because I enjoy chaos), it would annoy Trump voters AND annoy people who believe that America is (or should be) a democracy, although Clinton's popular vote victory may mitigate the latter. Even if Clinton wins via my suggestion, the repercussions might outweigh the gain, even for Clinton supporters.
Path to Secession
It takes 38 state legislatures to pass a Constitutional amendment (75% of 50 is 37.5, but we round up to 38 since we need "at least three quarters"). Since Trump won by a majority (not just a plurality) in 24 states, and even allowing for low voter turnout, it's unlikely one could convince 38 state legislatures to pass a secession amendment on the "I hate Trump" basis.
However, one might be able to convince the legislatures to give states an easier path to secession with the following arguments:
- During Obama's Presidency, people in several states (including those that have now voted for Trump) signed petitions for secession:
Even though Trump-voting states wouldn't want to secede during Trump's Presidency, they may find it useful to have a path to secession the next time someone they don't like is elected.
If "Democratic" states secede (in particular, California), it will strengthen the Republican Party in (what remains of) the United States. For Trump-voting states, this could be the difference between whether Trump is elected to a second term or not. Long term, it will give all future Republican candidates a much better chance of winning.
Some Southern states still believe the secession during the Civil War (War Between the States) should have been legal, and that President Lincoln acted illegally. Although the Supreme Court ultimately ruled in Lincoln's favor (https://en.wikipedia.org/wiki/Texas_v._White), many Southerners felt at the time (and perhaps still do) that states should have a legal right to secede from the Union if they so choose.
Rep. Bill LaVoy (District 17) of the State of Michigan House of Representative informs me that Michigan has made two attempts to pass legislation to appoint electors based on the popular national vote, not on plurality state vote. His email to me:
Good morning, Barry,
Thank you for emailing me regarding you views about the recent election. You are not alone in your frustration. Many of my constituents have contacted my office as well. Most are asking for a move away from the Electoral College and toward a National Popular Vote. According to the National Popular Vote advocacy group, the Michigan House of Representatives passed the National Popular Vote bill (HB 6610) in 2008. Unfortunately it failed to pass the Senate and was therefore never enacted. Currently, the same bill was introduced in the Senate (SB 0088) in February of 2015 and is awaiting a vote in the Committee on Elections and Government Reform. The bill will have to pass out of committee in the Senate before they can take a vote on it, then pass through a similar process in the House of Representatives. I understand your concerns and hope that this information will help to address them.
I will keep your advocacy in mind and I hope you continue advocating for legislation you feel strongly about. Having input from residents in the district is very important to me and I appreciate you taking the time to reach out to me.
The current bill appears to be more of a compact between states than individual action by the State of Michigan, however: http://www.legislature.mi.gov/documents/2015-2016/billintroduced/Senate/htm/2015-SIB-0088.htm
Of course, there's also the horrid implications of what electors going against the plurality vote would entail for representative democracy =/
Maybe, maybe not. You could throw in something about how Hillary actually won the national popular vote and how the electoral college system is seriously broken. You could even imply that if Gore (the popular vote winner in 2000) had been elected, it could've prevented the Bush Presidency and 9/11. Of course, as with all persuasive writing, you're free to speculate in your own favor :) And, technically, the United States is a republic, and the electoral college isn't representative (low population states are favored).
Hasn't Secretary Clinton already conceded defeat? You'd have to convince another Democrat to take up the cudgels. Perhaps Senator Sanders would be interested.
A lot of this analysis is based upon a mis-reading. "_in such Manner as the Legislature thereof may direct_" in practice means that _there is a state law_. Pennsylvania state law, for example, _does not_ make presidential electors directly selected by its legislature.
So if this is "horrible", do you mean to say that de-coupling the two elections (first for the electors and then in December for the president) was wrong, in the first place?
@AnoE I think I saw speculation somewhere that this system (electors choosing to vote instead of just a tally) was originally devised to pretty much protect against a similar threat. Many of the elite/wealthy wanted a check on who the masses choose and they assumed the electors would mostly be them so they had an extra safeguard if they believed the "rabble" chose wrong.
@anoe Ahh the wikipedia article on electoral college https://en.wikipedia.org/wiki/Electoral_College_(United_States)#History has a pretty good explanation actually. The original idea was that common people didn't know enough to vote for the president so each district would vote for a competent elector that would then be free to vote as they wished. This changed in the late 1800's.
In Michigan, the electors have already been chosen, at the Republican state party convention in August. If Clinton had won the state, the electors would have been Democrats chosen by that party's convention, likewise for other parties. If a write-in candidate such as McMullin had won, the electors would have been as specified as part of the write-in registration process. At least for Michigan, your letter should be a plea not to the legislators, but a personal plea to the electors themselves.
@JdeBP (and others) My point was that the legislature can change how they choose electors any time until December 13th. They can undo their previous choices and even repeal laws that force them to choose electors in a certain way. The key is that they can choose electors AFTER the election, so they are not bound by current laws or choices, provided they act by December 13th.
@barrycarter that may not be strictly true in all 50 states. The state legislature has defined how the electors are chosen by establishing the short-form universal suffrage election. The legislature could in theory change that and specify a new way to appoint the electors (even on a one off), but only through the means specified in their respective state laws, so for instance if a legislature isn't currently in session until after the Electors meet, they can't do anything without an emergency session (which often state constitutions do allow the governor to convene)
"for Hillary Clinton, and not for Donald Trump" I voted 3rd party and if someone tried to claim that my non-vote for Trump was a vote for Clinton, I'd be pretty pissed at the misrepresentation. Voting should be about who you want in office, not about who you want to keep out.
Your letter makes the baseless assumption that 3rd party votes were protest votes instead of votes of conscience. That perpetuates the falsehood that all votes belong to the two largest parties and that a vote for any other party is somehow misplaced. While some 3rd party votes are undoubtedly in protest, many are not. Many people hold views not adequately represented by the two largest parties and would not have voted for them regardless of the outcome. They already voted for a candidate that they knew would lose, why would who won change that?
" if third party voters were given a chance to vote again, knowing that the Trump/Clinton decision hinges on their choice" I don't think you can say that in general either. Plenty of people voted for Trump over 3rd parties because they disapproved of Clinton. It's hardly logical to assume that all 3rd party voters would instead go the opposite way and choose Clinton over Trump if they had to
@eques You may be right,and it would be interesting to take a poll of third-party voters to find out. In my letter,I intentionally fail to point out that, even if SOME third party voters flip to Clinton, others might flip to Trump, so Clinton could still lose. I used to chastise people on quora.com all the time for doing things like that. My defense is that I'm intending to persuade, not to give an unbiased scientific analysis. Having said that, I believe Johnson voters would shun Trump because of his anti-privacy policies,and Stein voters would shun Trump because of his anti-environmentalism.
@barrycarter but plenty of people who otherwise voted Republican may have voted Johnson as well as some libertarians may have objected to big gov't Democrat plans. It really would be a wild-card and would effectively amount to increasing the chaos rather than resolving anything
What about abother possibility: convince Republican party to revoke Trump before the convention?
@Anixx What are you talking about? The convention is long-over; the party can't revoke his nomination. Nominations mean nothing for the actual ballots/electoral process.
@erfink they are allowed to do this all the time in fact there are many cases of them breaking usually not in large numbers but they are still there https://en.wikipedia.org/wiki/Faithless_elector has some info on it.
@Anixx I originally thought you were suggesting time travel, which may still be more feasible than my plan, but what you're apparently suggesting is to have Republican party leaders talk to the "Republican" electors that have already been chosen in each state (assuming the legislature doesn't intervene) and convince them to vote against Trump? I don't see it happening... although, if word gets out they're trying this, the legislature may intervene just to stop it.
@barrycarter they can vote for enybody, yes? And they are Republican electors, not Trump's electors? So they have to vote for what Republican party boss says... Am I wrong?
@Anixx I don't know, but I'd love for someone (not me) to do more research. When Trump won the Republican nomination, I believe the Republican electors in each state pledged to vote for him. In some cases, the pledge is even legally binding. Whether or not they'd be willing to break their pledge, even if asked by Republican party bosses, is questionable, especially since they'd face tremendous backlash.
@DavidWallace "Hasn't Secretary Clinton already conceded defeat?" The concession doesn't have any legal effect. If she's elected, she's elected -- unless she also further refuses to take the oath of office. It just means she isn't going to call for recounts and similar.
I doubt this is actually legal; I'm almost sure the Supreme Court wouldn't allow a state to change its law for selecting electors *after* the electors have already been chosen.
Well, you might be right, but the Constitution explicitly gives the legislatures this power and doesn't say anything about when they can invoke it. The December 16th deadline isn't in the Constitution, but it could be considered "rule of law". Presumably, deciding who the electors are constitutes a "conflict", so the legislature has the authority to resolve it.
Not really. Although his message is pretty clear he has been quite careful not to directly say anything which would give a compelling moral mandate to block his presidency in the spirit or wording of the US constitution. Even if some loophole was found using it would be politically very dangerous.
Equally marches and protests against his presidency don't really carry any weight as he has a clear democratic mandate at the moment. While you might debate the fairness of the electoral system he did achieve a transparent win by the rules as they are. There are known precedents for effective civil disobedience withing the democratic process against specific policies but that is for the future.
I say this not as a Trump supporter (which I am most certainly not) but just to outline the cold hard facts.
Having said that, peaceful protests may be useful in demonstrating the strength of public opinion and can moderate decision making.
It is also worth considering that the Republican majority in Congress may not be as pro-Trump as the pure red vs blue numbers might indicate. If nothing else a republican congress will historically tend to be a brake on borrowing and spending which might hamper some of his more fantastical policy aims.
Indeed the great moral battle of the next 4 years may not be so much good versus evil as cynical self interest vs evil, and at least the cold dark hand of the military industrial complex has some grounding in reality and is well organised ;)
Actually, he doesn't have a "clear democratic mandate", since Clinton won the popular vote. A clear electoral mandate maybe, but that's not the same thing.
@barrycarter Bush's situation was even force because of the recount issue in Florida and he still managed just fine
@JonathanReez Whether "he still managed just fine" is surely up for debate. Some have called his presidency "a disaster." Regardless, that's really here nor there as to whether he had a mandate. If losing the popular vote is considered a "democratic mandate" then that term is meaningless.
@JimmyJames every single "winner-takes-all" system is vulnerable to a mismatch between the number of votes cast and the number of seats received. Claiming that Trump is not a president because he lost by 100k votes is ridiculous. Likewise Clinton herself failed to get 50% of the vote, if we're being pedantic.
@JimmyJames people in this thread are claiming that Trump doesn't have a "clear democratic mandate". I believe this accusation is ridiculous.
@JonathanReez The other thing to consider is that in states where there is no real contest, voter turnout tends to be lower for the obvious reason that it has no impact on the electoral college. If you were to get a turnout in NY and CA commiserate with the turnout in the contest states, it's likely the number total votes for Clinton would have been higher. In other words, the popular vote is likely under-representing the number of people who were not in favor of Trump and despite that, he still got less votes total.
@JonathanReez People are saying that because he doesn't have a "clear democratic mandate". A "clear democratic mandate" is a term reserved for elected officials that clearly have the support of the electorate. Saying he doesn't have a mandate doesn't mean that his win is not legitimate. For better or worse, that's how US presidential elections work. He won fair and square and people need to get used to that. But to say that he has a mandate from the people of the nation is clearly wrong. He couldn't even get the most votes.
@JonathanReez 'every single "winner-takes-all" system is vulnerable to a mismatch between the number of votes cast and the number of seats received'. True but the primary driver in this situation is that the electoral votes are allocated disproportionally to states with smaller populations.
@JimmyJames just for the sake of being 'that guy', I'l argue semantics. technically he is not President yet, rather just President-Elect.
@MattBrennan I'll call your "that guy" and raise you a pedant ;) I actually didn't state that Trump is president. I simply questioned who had made such a claim in the thread. And until your comment, no one had actually written anything like that.
@JimmyJames "He couldn't even get the most votes." Yes, but Hillary didn't exactly get that much more either. It's not like the popular vote was closer to 40/60 compared to an Electoral vote 60/40.
@eques I don't understand how that is relevant. No one is arguing that Hillary Clinton has a mandate. There's no requirement that election end with a 'clear mandate' for the winner's agenda. Most elections don't.
@JimmyJames My point was the election was so close; it's hardly like the other side had a "democratic mandate" that was undermined by the Electoral College
You could overthrow the current democratic political process and the institutions that support/defend it and replace it with an authoritarian system where by a head of state more to your liking could be appointed.
This could then be made retroactively legal.
That is kindof what the republicans may have just done. It is also why there are protests. Representation here has been very lopsided towards states, and more generally counties, with little population.
they have the ability to keep themselves in power for a very long time since they have all 3 branches of government. Anything any of them says could conceivably become law. They will be able to pick one supreme court justice which will give us a lopsided court once again and potentially another. This could be the end of America as a free nation.
@CcDd: Are you willing to agree to an 8 member Supreme Court? If no, than no complaints about lopsided.
Isn't this a bit like saying "you can kill him and have the new president pardon you?"