If Hillary Clinton loses a very tight election her ace-in-the-hole could be Russia.
Corporate media reacted harshly when Donald Trump said in the last debate that he would wait and see what happens before accepting the election results. “I will keep you in suspense,” he said. Trump has alleged that the vote will be rigged.
If Trump loses by a razor thin margin we can expect a demand for recounts and possible legal challenges. Some of his more violent supporters have also threatened trouble.
But what if Clinton loses a close election? In the wake of Wikileaks and FBI revelations Clinton’s sizable lead has evaporated and a tight result is looking more and more possible.
On her campaign plane a few hours after the last debate Clinton was asked if she would pledge to accept the results. She ignored the question and instead launched into an attack on what Trump had said.
If Clinton should lose a squeaker, she has two options to try to overturn the election and make herself president—and both involve blaming Russia. She can try to influence America’s bizarre electoral college system, or get at least two allies in Congress to challenge its certification of the election.
America’s Indirect Suffrage
Unknown to most people outside the United States, and to many within, the U.S. president is not chosen by a national popular vote. Instead the U.S. presidential election is really 50 separate state elections. The candidate that wins a state’s popular vote is awarded a number of electors based on population size.
These are actual persons who vote for president on behalf of the people. Slates of electors are chosen by both major political parties before the election. Whichever party wins a state’s popular vote gets the votes of that state’s electors. There are 538 electors in all and a candidate can must get 270 electoral votes to be elected president. *
This system ignores the national poplar vote so that a candidate may win more votes nationwide but still lose the election. It has happened four times, the last being in 2000 when Al Gore won the popular vote but lost the election to George W. Bush.
Several states, such as New York and California, usually vote Democratic, while others, such as many in the West and South, are normally in the Republican column. But there are states that could go either way, so-called swing states, and that’s where the most intense campaigning takes place.
According to one scenario, the four electoral votes in Maine could decide this election.
That’s why Trump campaigned there last week. Maine and Nebraska are the only two states that proportion some of their electors. One candidate could get one of the four electoral votes if he or she wins a congressional district.
Influencing the College by Blaming Russia
The Clinton camp’s accusation after the first Wikileaks revelations, just before the Democratic Convention, that Russian intelligence was behind the leak was later amplified in early October by James Clapper, director of national intelligence, who blamed “Russia’s senior-most officials” for intending to “interfere with the U.S. election process” by authorising the hack of the Democratic National Committee.
Clapper went significantly further, however, claiming that a Russian company was behind attempted hacks of electoral computer systems in various states.
The Obama administration’s claim was widely accepted by the news media even though no evidence of Russian tampering was publicly given. With just days to go to the election the story has been revived by the pro-Clinton media. CNN Anchor Jake Tapper on Friday incorrectly said the U.S. was accusing the Russian government, not a company, of threatening election computers.
In the last debate, Clinton said the hack “has come from the highest levels of the Russian government. Clearly from Putin himself in an effort, as 17 of our intelligence agencies have confirmed, to influence our election.” The 17 agencies were represented by Clapper. Clinton also offered no evidence.
If Clinton loses by a few electoral votes she could challenge the results by claiming that Russia tampered with the election. The public has been prepared with unproven allegations that are widely disseminated by corporate media and widely believed. With the media not previously demanding evidence of such a claim and if the intelligence agencies back her up, her only challenge might be to convince the needed number of Republican electors to change their votes to put her over the top.
There are only 26 states that require electors by law to vote for the candidate who won the state’s popular vote. Virginia has issued only an advisory to do so. The other 24 states have no such laws, freeing electors to vote their conscience and against their own party.
The swing state with the most electoral votes that doesn’t bind its electors by law is Pennsylvania, with 20 electoral votes. Other states in play such as Arizona, Utah, Texas, Georgia, North Carolina, Nevada and New Hampshire also have no laws to keep an elector from changing his or her vote. Ohio and Florida, the two biggest swing states, do bind the electors by law.
Clinton’s camp would be faced with turning a number of electors around to vote against the Republican candidate and switch their vote to her. Clinton has to convince them that a changed vote would uphold American democracy against the interference of a supposedly hostile state that threw the election for Trump.
Clinton has to convince such so-called “Faithless Electors” to vote against their state’s popular will. This has happened in seven previous elections. In each of them only one elector changed his or her vote. This occurred in 1948, 1956, 1960, 1968, 1972, 1976, and 1988. But no Faithless Elector has ever decided a presidential election before.
The 2016 Election, one of the strangest in memory, could add to the craziness by becoming the first.
The Second Option
If she fails to convince enough electors to change their votes there is one last chance for Clinton. At 1 p.m. on January 6, both houses of Congress meet to certify the election. However, an 1887 law allows any member of Congress to formally object to the result.
An objection must be put in writing and signed by at least one Senator and one Representative. The Joint Session is recessed and both Houses have two hours to separately consider the objection. Then each House votes on it. If both agree, the electoral votes are not counted.
There have only been two objections and both times, in 1969 and 2005, they were rejected.
If Clinton succeeds and the objections are accepted, vacating Trump’s electoral votes because of alleged Russian interference in certain states, it could bring him below the required 270 electoral votes. But it would not give Clinton that number either.
If neither candidate reaches 270 electoral votes the Constitution says the election is decided by a vote in the House of Representatives. Each state delegation gets one vote and a simple majority is required. The House is currently controlled by the Republicans. But many Republicans do not support Trump.
The House has decided a presidential election only two times before. In 1800 Thomas Jefferson and Aaron Burr tied with 73 electoral votes each. After 36 ballots over six days, the House chose Jefferson as the third president. In the 1824 election Andrew Jackson received 99 electoral votes, 32 short of a majority, to John Quincy Adam’s 85, but the House chose Adams.
It would certainly be a long shot for Clinton to try either of these tactics to overturn a close loss to Trump. But given everything else that has happened in this election campaign, would anyone really be surprised?
*The system was a compromise between Congress and voters (until 1856 only propertied white men) selecting the president. It also gave less populated Southern slave states a greater say in a presidential election. It was established in 1789, at a time when the Holy Roman Emperor was chosen by an electoral college. From 1849 to 1918 Prussian voters chose electors to decide on deputies for the House of Representatives in a system of indirect suffrage. The French and Irish Senates are today chosen by an electoral college. The Pope is still elected by a College of Cardinals.