Donald Trump now suggests that he will be defeated in a rigged election, but with prominent businessmen, independents, and Republicans, including Michael Bloomberg, Mark Cuban, Henry Paulson, Brent Scowcroft, and Richard Armitage declaring their support for Hillary Clinton, and with almost daily gaffes by Trump, one might think that the Republican ticket has almost zero chance of success even in a fair election. Nevertheless, at the time of this writing, even Nate Silver at the time of this writing rates Trump's chances of victory to be greater than 30%.
So, following the demise of the Never Trump movement at the RNC, I looked again for any evidence of hope for Never-Trump-but-not-Clinton Republicans, which led me back to an interesting article by Derek Muller in the March 17 edition of the Washington Post. There Muller explained how, even if Donald Trump appears to have captured 270 electoral votes on November 8, there remains a constitutional and apparently plausible way that one or more state legislatures could overturn this result.
Muller, associate professor at Pepperdine University School of Law, pointed out that Article II, Section 1 of the Constitution provides that
Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors....
Thus, he explained that on November 8, the Texas legislature, for example, could decide whether to change the law in order to reclaim its constitutional right to choose its electors, thus allowing itself to choose electors who would vote for a Republican candidate it prefers to Trump.
How might this work? With no regional third party candidate able to carry the popular vote of one or more states, as Strom Thurmond did in 1948 and George Wallace did in 1968, the 538 electoral votes will be expected to be divided between only Trump and Clinton. If Clinton captures 270 electoral votes on election day, this whole argument is moot. Even if she fails, Trump would still be extremely unlikely to win a majority if he is somehow deprived of the 38 electoral votes of red state Texas, which Clinton certainly will not win either.
According to the Twelfth Amendment,
if no person have such majority [of electoral votes], 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.
Election nerds are reminded that the House chose John Quincy Adams over Jackson and Crawford in 1824. And Hamilton junkies might recall that Thomas Jefferson defeated Aaron Burr in the House in 1800 with the title character's assistance, though the glitch that led to that event was subsequently corrected by the Twelfth Amendment.
In Muller's example, Texas, or any other red state or combination of red states totaling enough electors to deprive Trump of 270, would add its legislature's choice as the third place finisher, who would then be in the running with Trump and Clinton. The House would be entirely free to select any of the three, and would not be constitutionally obligated to consider either the popular vote or the electoral vote totals.
Under the Twelfth Amendment each state delegation in the House would have one vote. Republicans currently have the majority in 33 of the state delegations, so even if Democrats gained a majority of individual Representatives, Republicans would be overwhelmingly likely to still control more state House delegations than Democrats in January, and would thus be freely choosing from the two Republicans.
One might wonder: What legal challenge might be made to a state's use of such a strategy? Would the Supreme Court find itself asked to fashion a solution to such a disagreement, as in the Bush v. Gore decision in 2000? Or would SCOTUS allow the House of Representatives to deal with the unfinished election in January?
Even if this unlikely sequence of events brings the presidential election into the House of Representatives, the outcome there would be uncertain. The Republican state congressional delegations might be initially divided between Trump and the second Republican candidate, and with the powerless minority of Democratic states' delegations only watching, one can imagine negotiations and possibly multiple ballots until one Republican candidate gains support from a majority in each of the necessary 26 Congressional red states.
Jonathan Rauch in "How American Politics Went Insane" in the July/August Atlantic argues that the loss of influence of party insiders is in part to blame for the current political insanity. He also points out that the Framers of the Constitution created the Electoral College, backed up by the House of Representatives, as a check on demagogy. Others argue that our primary system encourages the nomination of extremists as a result of the need to appeal to the base. I would argue that a wholesale change via constitutional amendment to ranked choice voting with instant runoff would be ideal, since this election method leads to the selection of a candidate with majority support.
The system may not be rigged in the sense that Donald Trump is suggesting. But we should consider using the current political insanity as an opportunity to shed light on its imperfections. We need democracy now more than ever.