GOP repudiation of Trump before 11/8? If so, then what?

Posted on October 7, 2016, 7:00 am

As I write this on Friday night October 7, there is renewed talk of GOP leadership disavowing Trump.  True, Trump will still be on the ballot that we citizens cast.  But suppose the GOP leadership publicly announces that it will ask GOP electors, when they meet and vote on 12/19, to cast their presidential vote for Pence.  Then some GOP-leaning superPACs spend a lot money before 11/8 informing voters of this plan.  

Suppose this plan is successful, insofar as it causes on Election Night, 11/8, the media to announce that GOP electors were chosen in enough states to amount to 270 Electoral College votes. Then on 12/19, the GOP electors all do as intended according to this plan: they cast their official Electoral College votes for Pence, not Trump.  Pursuant to 3 U.S.C. 9-11, these electors all sign their certificates showing Pence as their choice and send the certificates to Joe Biden, as President of the Senate. 

Now, someone might claim that some of these electors violated a previous pledge they made to cast their Electoral College votes for Trump.  Maybe this claimant even arranges to send to Biden a separate set of Electoral College votes cast by replacement electors who were substituted because the faithless electors violated their pledge. (This move would be reminiscent of 1876.) We can assume that the claimant wouldn't send to Biden 270+ Electoral College votes for Trump, but some number short of 270 in the hope of depriving Pence of the presidency.  

What would happen when Biden receives two conflicting sets of Electoral College votes from some states, one set for Pence, and the second set for Trump? Under the Twelfth Amendment and 3 U.S.C. 15, the new Congress meets on January 6, 2017, to open these Electoral College votes.  If the Republicans control both the Senate and the House and stay organized on behalf this plan, they could vote to accept all the Electoral College votes for Pence and reject all the Electoral College votes for Trump, and Pence would be constitutionally elected President.   If, however, the Democrats control the Senate (perhaps unlikely as a practical matter if the GOP electors reached 270+, but still worth considering), while the Republicans retain the House, the situation gets even more complicated. If  for some states the Senate votes to count the Electoral College votes for Trump (would they in an effort to deprive Pence of the White House?), and the House votes to count the conflicting Electoral College votes for Pence, then under 3 U.S.C. 15, the conflict is supposed to be resolved by the governor of each state that sent to Biden two or more sets of conflicting Electoral College votes.  But some scholars think that 3 U.S.C. 15 is unconstitutional, and it is unclear what happens if both conflicting sets bear the governor's signature.

Anyway, let's suppose for simplicity that the governor-as-tiebreaker in each state is accepted, and the consequence is that Pence is pulled below 270--perhaps because Pennsylvania's Democratic governor follows the Senate's lead and picks the Trump set of electors. If Pence falls below 270, then the House of Representatives must choose the President with the choice confined to Pence, Clinton, and Trump.  But under the Twelfth Amendment, each state has one vote, and it takes 26 states to achieve a choice (not just a majority of states that vote in the House).  If 26 states vote for Pence, then he's the constitutionally elected President (by the different route than above).  But if no one gets 26 states (because some state delegations are evenly divided between Democrats and Republicans, and Pence can't quite reach 26), then under the Twentieth Amendment whomever the Senate has picked as Vice-President becomes the Acting President. 

So if the Democrats control the Senate, they would have picked Kaine as Vice-President. But if the Republicans control the Senate, who would they pick?  It depends on whom the GOP electors voted for on 12/19 when they picked Pence for president.  As I read the Twelfth Amendment, they are not supposed to pick Pence for both President and Vice-President.  So they would need to come up with another name for Vice-President, who might end up as Acting President.

All of this is highly speculative, of course, and even if the process starts down this road, there might be some wild and unexpected twists-and-turns.  But this year's presidential election already has been wild and unexpected, so who knows? It pays to speculate a bit, just to try to be prepared for strange scenarios that might actually unfold.


Back to top

To Commentary

Back to Election Law


Election Law at Moritz is nonpartisan and does not endorse, support, or oppose any candidate, campaign, or party. Opinions expressed by individuals associated with Election Law at Moritz, either on this web site or in connection with conferences or other activities undertaken by the program, represent solely the views of the individuals offering the opinions and not the program itself. Election Law at Moritz institutionally does not represent any clients or participate in any litigation. Individuals affiliated with the program may in their own personal capacity participate in campaign or election activity, or engage in pro bono representation of clients other than partisan candidates or organizations.