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My question was spurred by reading this article which describes the voting mechanisms of the electoral college. The article was shared by a friend who believed it was a way for Clinton to be elected as President, but after reading the article, it seemed to me that the election of Mike Pence would be much more likely. The fundamental idea is that if enough electors "vote their conscience", Trump may not achieve the necessary 270 votes and the decision would then go to the House. There were two sections of the article that I'd like to highlight:

"If neither party ends up with 270 votes, then the decision passes to the House of Representatives, and a vote in that chamber determines the winner. The House is permitted to choose from among the three candidates who receive the most votes in the Electoral College."

The part that interests me in this section is that the decision must be made among the top three candidates. The article also describes predictions for how this breakdown may occur:

"The requirement here is modest: a small group of Republican electors must be persuaded to vote their conscience. No question that many of these are appalled at the prospect of a Trump presidency; surely a few are courageous enough to cast a vote for someone else. (Most if not all would vote for another Republican, of course; it doesn’t seem likely that many would choose Hillary Clinton.)"

Given that the vote of specific electors is not made public and that many "establishment politicians" may feel more comfortable with a Pence presidency than a Trump presidency, is it reasonable to assume that Mike Pence could be elected as President of the United States despite never declaring an official bid for the presidency?

  • What part of this claim are you skeptical about that can't be answered by reading the Twelfth Amendment? – jwodder Nov 12 '16 at 0:54
  • Note to moderators: I previously flagged this question as duplicate. Please disregard my flag - upon deeper thought, it's NOT a duplicate, although it is closely related to existing questions about 12th amendment. – user4012 Nov 12 '16 at 1:33
  • Yes your chances are very close to this: youtube.com/watch?v=KX5jNnDMfxA – K Dog Nov 12 '16 at 10:47
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TL;DR: NO CHANCE, under presented theory.

The article (or whoever interprets it) is 100% wrong in saying "The House is permitted to choose from among the three candidates who receive the most votes in the Electoral College"

Electoral college actually casts TWO sets of votes, one for President, another for Vice President. Pence's votes are the latter.

12th Amendment actually says explicitly:

then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.

In other words, none of the 300 votes for Pence count towards 12th amendment votes, since he was voted for as Vice-President and not President.


Ironically, this theory would have been true(r) before 12th Amendment, since in the early days of the Republic, the Vice President wasn't explicitly voted on; but instead was the runner-up in Presidential election. But then again, Pence wouldn't have been running, probably, as nobody ran as VP on Presidential ticket back then.


Having said that, Pence has a chance of being elected POTUS if 270 electors choose to vote for him instead of Trump for President, AND if (which may not be true) there are enough electors whose votes aren't legally binding to the results of the states' citizens' votes (some electors may choose to be faithless, while others would have their votes invalidated). I haven't done the math, since this wasn't the point of the question.

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The typical scenario that would have lead to a Mike Pence presidency would have been a deadlocked electoral college and a deadlocked House. With a Republican Senate, they would have chosen Pence as vice-president. And without a president, Pence would have become the acting president on inauguration day.

It's conceivable but really unlikely that enough faithless electors would vote for Pence over Donald Trump. The simplest path would probably be for Hillary Clinton to drop out and be replaced with Pence by the party committee. Then her electors could vote for Pence. So they'd only need thirty-eight of Trump's electors to switch. That's still incredibly high but easier than two hundred seventy or both thirty-seven faithless electors and the House which is what it would take otherwise.

There is no way for Pence to reach the presidency without at least thirty-seven faithless electors because otherwise Trump will be chosen by the electoral college.

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The electors have the power to vote for anyone they choose, although they could face prosecution by their state.

See for example the 1 vote for John Edwards to be president, though he was instead a vice-president candidate, in 2004

https://www.archives.gov/federal-register/electoral-college/votes/2000_2005.html#2000

"As a result of this incident, Minnesota Statutes were amended to provide for public balloting of the electors' votes and invalidation of a vote cast for someone other than the candidate to whom the elector is pledged"

https://en.wikipedia.org/wiki/Faithless_elector

  • The electors vote secretly though, right? How can there be a prosecution then? (unless nobody votes for Trump) – daraos Nov 12 '16 at 11:49
  • @daraos according to Michael White of the Office of the Federal Register " if an elector decides to be faithless and vote for someone besides who they are pledged to, he or she would have to publicly refuse to sign the pre-printed certificate." slate.com/articles/news_and_politics/explainer/2000/12/… – DavePhD Nov 12 '16 at 14:26
  • Thanks, the wording in the question made me wonder "Given that the vote of specific electors is not made public". – daraos Nov 12 '16 at 15:05

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