A series of long-shot bids to reconsider the result of the 2016 election cropped up on Wednesday as Democrats and liberals dismayed by Donald Trump’s victory saw Hillary Clinton’s lead in the popular vote surpass 2 million on Wednesday.
Clinton’s camp and leading Democrats have been entirely silent on the efforts — including a potential request for a recount of Pennsylvania, Michigan, and Wisconsin sponsored by Green Party candidate Jill Stein — further underscoring the unlikelihood of movement on that front. But left-leaning activists were nonetheless temporarily cheered after New York Magazine reported on Tuesday evening that Clinton’s campaign chairman John Podesta and campaign attorney Marc Elias spoke with a group of election lawyers and computer scientists about the possibility that results may have been altered in those states.
The former secretary of state has garnered 64,223,958 votes, compared to the President-elect’s 62,206,395, according to a count curated by Dave Wasserman of the nonpartisan Cook Political Report.
Among the potential steps to challenge the results on Wednesday was an announcement from Stein, often a strident Clinton critic, that she would seek to challenge the results in all three of the states if she raised the $2 million necessary to do so. Pennsylvania and Wisconsin are traditionally Democrats states that fell into Trump’s column on November 8, and Michigan’s story is similar, though it has yet to be officially called for Trump.
But even if Stein were to raise enough money for the challenge before the states’ looming deadlines, it’s still a stretch: Clinton would need to win all three states in order to flip the Electoral College vote.
That’s enough to have some Clinton allies watching from afar with interest ever since last week’s conference call, but not enough to get any publicly involved in the effort yet.
Stein’s call came shortly after the report that the group of experts had told Podesta and Elias they saw evidence that Clinton received 7 percent fewer votes in Wisconsin counties that used electronic machines instead of paper ballots or optical scanners.
On Wednesday, however, J. Alex Halderman of the University of Michigan — one of the experts — clarified in a Medium post that he was not claiming to have evidence of a hack, but that he still recommends a full audit beyond the partial ones that are likely to occur anyway.
With Democrats increasingly pointing to Clinton’s large lead in the popular vote as evidence that the Electoral College system needs rethinking, an attorney working with anti-Trump electors said he’s preparing to file suit within two weeks on behalf of Micheal Baca, a Democratic elector from Colorado.
The effort is part of a coordinated legal fight to dismantle the 29 state laws that force electors to support their party’s nominees. The lawyer, who spoke on condition of anonymity while the legal strategy is being finalized, said he anticipates similar suits in about half a dozen states.
A court victory taking down or weakening laws that “bind” electors to their states’ popular vote, the attorney said, would signal to electors across the country that they can’t be punished for voting their conscience. The Constitution, he said, should prevent states from forcing electors to cast votes against their will.
P. Bret Chiafalo, a Democratic elector from Washington state who is leading the anti-Trump effort with Baca, said he’s supportive of legal actions to upend elector binding laws and said a similar suit in his state is “actively being investigated.”
The suits would be predicated on a 1952 Supreme Court ruling in Ray v. Blair. In that case, the court held that electors may be forced to take oaths to support their party’s candidate — but the justices explicitly left open the question of whether those oaths could be enforced if an elector ultimately makes a different decision.
“[E]ven if such promises of candidates for the electoral college are legally unenforceable because, violative of an assumed constitutional freedom of the elector under the Constitution … to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge … is unconstitutional,” the justices wrote.
One of the greatest impediments facing so-called “faithless electors” is the existence of laws in 29 states that force electors to support the will of their states’ voters. Those laws, though, have never been enforced — and most either carry light fines or no penalty at all, with no method for forcing the recalcitrant electors to switch votes.
“Faithless” electors have been rare in American history — just 157 have been recorded, and most of them came in the 19th century. They’ve never affected the outcome of an election.
Baca and his supporters argue that the state binding laws are invalid because they seeks to override electors’ constitutional prerogative — to deliberate independently and choose the fittest candidate for office. Though the Electoral College has long been viewed as a technicality — simply ratifying the vote on Election Day — the founders, he notes, envisioned it as a far more muscular institution. It’s partly why he’s dubbed his group “Hamilton Electors,” an allusion to Alexander Hamilton, whose helped conceptualize the Electoral College as a democratic safeguard.
Baca is helping drive the effort to encourage GOP electors to defect from Trump, arguing that the president-elect presents a unique national danger that compels Electoral College members to buck tradition and prevent his ascension to the White House.
No GOP electors have publicly declared their opposition to Trump, though multiple have expressed reservations: just one, Texas’ Art Sisneros, has said he’s open to voting against Trump, and he told POLITICO on Wednesday that he will make a final decision next week.
The ultimate goal of the effort isn’t to install Clinton or a Democrat, but to convince sufficient electors of both parties to unite behind a consensus Republican candidate. Short of that, Baca’s group is working to pry 37 Republican electors from Trump, just enough to deprive him of the presidency and send the decision to the House of Representatives.
Trump’s team has declined repeated requests for comment about the Electoral College effort and has refused to say whether any officials are monitoring it or working to keep Republican electors in line.
Trump himself is a noted critic of the Electoral College who called it “a disaster for a democracy” in 2012, and he told New York Times reporters Tuesday he would “rather do the popular vote” and was “never a fan of the Electoral College until now.”“The popular vote would have been a lot easier, but it’s a whole different campaign. I would have been in California, I would have been in Texas, Florida and New York, and we wouldn’t have gone anywhere else,” Trump said. “Which is, I mean I’d rather do the popular vote.”
“But I think the popular vote would have been easier in a true sense because you’d go to a few places,” he added. “I think that’s the genius of the Electoral College. I was never a fan of the Electoral College until now.”
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