Could a faithless elector swing an election?

[Pericles]

Here's  a scenario. Trump and Clinton both get 269 EVS and it goes to the House, Clinton wins the PV by a 0.8% margin. Then when the EC meets a faithless elector vows to "save the country" and defects from Trump to Clinton,  giving her the presidency. Is a scenario of a faithless elector swinging the election possible? What would be the ramifications? Thoughts?

[LLR]

That guy would have to move to some private island to protect his life.

[muon2]

A faithless elector in that scenario could shift from Trump/Pence to Pence/Trump. Since no one would have 270 EVs, the top three names would go to the House. That means the House would choose from between Clinton, Trump and Pence. Pence could conceivably win in the House and become the President.

[Goldwater]

A faithless elector in that scenario could shift from Trump/Pence to Pence/Trump. Since no one would have 270 EVs, the top three names would go to the House. That means the House would choose from between Clinton, Trump and Pence. Pence could conceivably win in the House and become the President.

But the Senate can only choose from the top two VPs, right? So could Pence be elected both President and VP?

[Vosem]

A faithless elector in that scenario could shift from Trump/Pence to Pence/Trump. Since no one would have 270 EVs, the top three names would go to the House. That means the House would choose from between Clinton, Trump and Pence. Pence could conceivably win in the House and become the President.

But the Senate can only choose from the top two VPs, right? So could Pence be elected both President and VP?

It's correct that the Senate can only choose from the top two. Either Pence would be disqualified from the vice-presidential ballot by being elected President (leaving Kaine as the only choice, electing Pence/Kaine), or he would have to refuse one of the offices (which would be a meaningless choice, since refusing the Presidency and assuming the Vice Presidency would just elevate him to the Presidency anyway), leaving the Vice Presidency vacant and allowing Pence to nominate his choice for the position, who would presumably skate through the majority-Republican Senate.

In practice, I rather doubt Pence would openly double-cross Trump like this, though some members of the House may "vote" Pence regardless in an effort to deadlock the vote and elevate whoever is elected VP to the Presidency (presumably Pence in this narrative, who would then involuntarily become President, though I can imagine some Republican House members really would prefer Tim Kaine to Donald Trump).

[Slander and/or Libel]

A faithless elector in that scenario could shift from Trump/Pence to Pence/Trump. Since no one would have 270 EVs, the top three names would go to the House. That means the House would choose from between Clinton, Trump and Pence. Pence could conceivably win in the House and become the President.

But the Senate can only choose from the top two VPs, right? So could Pence be elected both President and VP?

It's correct that the Senate can only choose from the top two. Either Pence would be disqualified from the vice-presidential ballot by being elected President (leaving Kaine as the only choice, electing Pence/Kaine), or he would have to refuse one of the offices (which would be a meaningless choice, since refusing the Presidency and assuming the Vice Presidency would just elevate him to the Presidency anyway), leaving the Vice Presidency vacant and allowing Pence to nominate his choice for the position, who would presumably skate through the majority-Republican Senate.

In practice, I rather doubt Pence would openly double-cross Trump like this, though some members of the House may "vote" Pence regardless in an effort to deadlock the vote and elevate whoever is elected VP to the Presidency (presumably Pence in this narrative, who would then involuntarily become President, though I can imagine some Republican House members really would prefer Tim Kaine to Donald Trump).

If Pence assumed the Vice Presidency and became Acting President, he wouldn't be able to nominate a Vice President, because he would already be the Vice President, acting as President, right? The Presidency would still be undecided and deadlocked, but that wouldn't make Pence the President, only the Acting President.

[Nym90]

In theory, yes, but remember that the members of the Electoral College are the most committed partisans and loyalists in the country. There is no way that a Trump elector would vote for Clinton.

The scenario that Muon laid out is the only type of plausible odd scenario that I could see happening, where an elector throws the election into the House (where Republicans would almost certainly still control a majority of delegations and thus would have the option of choosing a different Republican other than Trump as president).

But even that would be extremely unlikely....though it's not completely impossible if Trump lets the RNC pick the electors and doesn't make sure that they are all committed Trump supporters as opposed to committed conservatives/Republican party supporters.

[Vosem]

A faithless elector in that scenario could shift from Trump/Pence to Pence/Trump. Since no one would have 270 EVs, the top three names would go to the House. That means the House would choose from between Clinton, Trump and Pence. Pence could conceivably win in the House and become the President.

But the Senate can only choose from the top two VPs, right? So could Pence be elected both President and VP?

It's correct that the Senate can only choose from the top two. Either Pence would be disqualified from the vice-presidential ballot by being elected President (leaving Kaine as the only choice, electing Pence/Kaine), or he would have to refuse one of the offices (which would be a meaningless choice, since refusing the Presidency and assuming the Vice Presidency would just elevate him to the Presidency anyway), leaving the Vice Presidency vacant and allowing Pence to nominate his choice for the position, who would presumably skate through the majority-Republican Senate.

In practice, I rather doubt Pence would openly double-cross Trump like this, though some members of the House may "vote" Pence regardless in an effort to deadlock the vote and elevate whoever is elected VP to the Presidency (presumably Pence in this narrative, who would then involuntarily become President, though I can imagine some Republican House members really would prefer Tim Kaine to Donald Trump).

If Pence assumed the Vice Presidency and became Acting President, he wouldn't be able to nominate a Vice President, because he would already be the Vice President, acting as President, right? The Presidency would still be undecided and deadlocked, but that wouldn't make Pence the President, only the Acting President.

If the Presidency is deadlocked, Pence is Acting President, and would not have the authority to appoint a Vice President. However, the Twelfth Amendment specifies that the House is to pick a new President "immediately":

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(bolding mine)

Thus, at a certain point the House would lose the authority to elect a President, since it was not done immediately -- I am fairly confident the next House, elected after 2018, would not have the authority to elect a "President", and in fact the authority may be lost as soon as the House goes on recess. As soon as the Presidency is actually vacant, the Vice President (Pence in this scenario) would assume the role and get to nominate a Vice President of his choosing.

[SteveRogers]

If Pence assumed the Vice Presidency and became Acting President, he wouldn't be able to nominate a Vice President, because he would already be the Vice President, acting as President, right? The Presidency would still be undecided and deadlocked, but that wouldn't make Pence the President, only the Acting President.
[/quote]

If the Presidency is deadlocked, Pence is Acting President, and would not have the authority to appoint a Vice President. However, the Twelfth Amendment specifies that the House is to pick a new President "immediately":

You must be logged in to read this quote.

(bolding mine)

Thus, at a certain point the House would lose the authority to elect a President, since it was not done immediately -- I am fairly confident the next House, elected after 2018, would not have the authority to elect a "President", and in fact the authority may be lost as soon as the House goes on recess. As soon as the Presidency is actually vacant, the Vice President (Pence in this scenario) would assume the role and get to nominate a Vice President of his choosing.
[/quote]

That's an interesting interpretation, but that's a LOT of assumptions to make about the meaning of a clause that's never been subjected to any kind of judicial review. I wouldn't be confident at all that that's how a court would read the text.

You're right that the House is supposed to start proceedings to choose the president "immediately." But the ability of the House to break a deadlock and choose a president obviously extends beyond January 20th when the President's term starts. I don't know how a court would go about putting some outer limit on how long the House has to finish choosing a president. SCOTUS might very well deem that a political question that it's not gonna get involved in.

[Fuzzy Says: "Abolish NPR!"]

It would be tough for 1 faithless elector to pull this off because it would be unlikely to reach a tie in the EC.  However, it is quite possible for a coalition of "constitutional conservative" electors to screw Trump over and inject another Republican, whether it be Cruz or someone more palatable.

The issue would be whether or not the House Republicans would have the stones to vote to elect a President that was either rejected in the primaries, or who didn't even run.  I couldn't even begin to predict how this would turn out beyond the votes of the avowed #NeverTrump Representatives, and even they may not reject the verdict of the polls (assuming Trump got the most popular votes).

[Arbitrage1980]

We have had faithless electors in the past, but it has never affected the outcome of an election (last one was 2004 when a Minnesota elector cast his vote for Edwards rather than Kerry; also in 2000 an elector abstained rather than vote for Gore to protest DC's lack of congressional representation).

The scenario you described, if it occurred, would be entirely constitutional, and I doubt that a federal Court would strike it down.  Although about half the states have laws that "bind" an elector to vote with the outcome of the state, it's very doubtful that it's enforceable since the First Amendment guarantees freedom of speech, and voting is considered part of protected speech.  Thus, no one can be forced to cast a vote a  certain way. 

Now, as someone above said, since the identity of the electors are public, that person would probably need to leave the country since his life will very much be in danger.  But is it constitutional?  Yes.