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.
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
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 ;)
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.