The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
According to Nate Silver's FiveThirtyEight.com, as of this writing Donald Trump has about a 33 percent chance of winning the presidency. If Trump does win, he is likely to win a slim majority in the electoral college—indeed, there is around an 11 percent chance that he will lose the popular vote but win in the electoral college, which would almost guarantee a slim electoral college margin.
But what if Utah, with its six electoral votes, goes for independent conservative candidate Evan McMullin? McMullin's candidacy has gone nowhere nationally, but he has been running competitively with Trump in Utah, where a combination of Mormon disgust with Trump and McMullin's own Mormon heritage has given the latter's candidacy traction.
If Trump were otherwise going to emerge victorious in the electoral college, a McMullin victory in Utah could easily deprive Trump of the needed electoral votes to win a majority. The election would then be thrown to the House, voting by state delegation, with the three top electoral vote winners—Hillary Clinton, McMullin and Trump—the only ones the House would be constitutionally permitted to vote for. The Republicans would control most House delegations.
The fly in the ointment here is obvious: Other than Utah, which Republican-controlled House delegations are going to vote for the candidate who received less than 1 percent of the vote nationally over the GOP's standard-bearer, however distasteful and unsuited to the presidency the representatives may find Trump? The answer, most likely, is none of them.
But what if McMullin, realizing that Trump is still going to become president, instead at the last minute directs his electors to vote for another candidate—Mitt Romney, Orrin Hatch or John McCain, for example? The latter two, at least, might even get some Democrat-controlled delegation votes to stop Trump, especially given that they both are known for bipartisanship and are sufficiently old that they would be unlikely to serve more than one term. McMullin could be suitably rewarded with a high-level position in the new administration. (I'm not sure whether Utah is one of the states that requires its electors to vote for the winner of the state's popular vote. Even if it is, I don't see how that law could be enforced.)
This scenario is certainly implausible, but it's not impossible. The biggest problem at this point is that McMullin has of late been fading in the Utah polls, with Trump taking a clear lead in the state. So come on, Utah voters: Keep hope alive!