13 Sep The Faithless Electors of America’s Electoral College*

The Faithless Electors of America’s Electoral College

Americans have been complaining about the compromises that went into creation of the Electoral College for centuries … almost since the first days of the Republic. An editorial headline in the August 30^th New York Times captured the 21^st Century sentiment: “Fix the Electoral College, or Scrap it.” It follows a recent Gallop poll that found that 53{29ea29b64b10057f61377b2c087cd5b7537a0cd24da4295a308b0bf589469f35} of Americans would like to “scrap it” by amending the Constitution so that the candidate who receives the most votes nationwide would become President (while 47{29ea29b64b10057f61377b2c087cd5b7537a0cd24da4295a308b0bf589469f35} support the Electoral College system “as is,” a marked increase in support over the last 8 years). Americans’ frustration with the Electoral College peaks when one party ends up with the short-end of the Presidential Electoral College stick, sparking a perception of unfairness. In 1992, Bill Clinton won the Presidency with a minority of the popular vote in 49 of 50 States, winning the popular vote only in his home State of Arkansas. In 2000, George W. Bush won Florida and received all of its electoral votes with less than half the popular vote. Bush in that election also received less than a plurality of the national popular vote. And in 2016, Donald Trump won the Presidency with 46.1{29ea29b64b10057f61377b2c087cd5b7537a0cd24da4295a308b0bf589469f35} of the popular vote and 2.9 million fewer votes than Hillary Clinton.

Whether or not those Electoral College election results are a net negative for Americans and reflect unfairness, or are beneficial in preserving federalism, encouraging candidates to build national coalitions, and lead to quick, definitive electoral outcomes, there is no possibility in the current political environment for the Electoral College to be either “fixed” or “scrapped.” Any tinkering with the College would require a Constitutional Amendment, something that the partisan divide in 2019 is incapable of achieving.

Because the Electoral College will remain the reality for America’s forthcoming Presidential elections, it’s important to understand how the Elector system works.

Under Article II, Section 1, Clause 2 of the Constitution, each State legislature is charged with selecting Electors to elect the President – the national popular vote is irrelevant –, with each State allocated a number of Electors equal to its number of Congressmen and Senators. The Presidential candidate receiving the majority of Elector votes – 270 at present – becomes President. Since the Civil War, all but two States have determined that the candidate winning the plurality of the State’s popular vote will receive all its electoral votes. Maine and Nebraska, the two exceptions, select their Electors by popular vote on a Congressional district-by-district basis.

What happens if, instead of voting for the candidate winning the plurality of a State’s popular vote, an Elector decides “not to keep the faith” and votes for the other candidate or, worse yet, votes for someone who’s not even a Presidential candidate?

In the first Federal case to address this question – that is, whether the Constitution requires a Presidential Elector to vote for the candidate that State law requires –, the Tenth Circuit Court of Appeals on August 20^th said “absolutely,” ruling that an Elector can vote for whomever he pleases … even a person who isn’t running for the Presidency! As a U.S. Circuit Court sitting just below the Supreme Court, the Tenth Circuit therefore has ruled that Electors selected by a State to vote for a specific Presidential candidate can vote for the person of their individual choice. The court said that “while the Constitution grants the states plenary power to appoint their electors, it does not provide the states the power to interfere once voting begins, to remove an elector, to direct the other electors to disregard the removed elector’s vote, or to appoint a new elector to cast a replacement vote. In the absence of such a delegation, the states lack such power.” In other words, Electors are free to be faithless.

The Tenth Circuit case is Baca v. Hickenlooper. It addressed a Colorado law requiring Colorado’s Electors to vote for the winner of the State’s popular vote. Although Hillary Clinton carried the popular vote in Colorado in the 2016 Presidential election, the Colorado Elector in question, Michael Baca, voted for John Kasich. After he did so, Colorado removed him as an Elector, “canceled” his vote, and appointed a replacement. Baca sued … and won.

Next stop … the Supreme Court!

Baca’s faithlessness violated Colorado law even if it didn’t exceed his powers as an Elector under the Constitution. Shouldn’t Colorado have a remedy for such a willful violation of its laws by a “faithless Elector”?

“No,” saith the Tenth Circuit. When it comes to challenging or changing a faithless Elector’s Presidential vote, only the Constitution can provide remedies.

While Colorado may not have a remedy, the Washington State Supreme Court earlier this year decided that the State of Washington does … although the “remedy” applied by the court had the smallest of teeth. After an ally of Baca’s in the State of Washington attempted to vote for an alternative candidate for President, the Washington State Supreme Court in In re Guerra, upheld a Washington State law imposing a $1,000 fine. The court noted that “the power of electors to vote comes from the State, and the elector has no personal right to that vote.” Really? Although the Washington State Supreme Court believes that nothing in the Constitution grants Electors the discretion to cast their votes in any way other than for the candidate to whom they’re pledged, that was not what the Washington Court was asked to decide. Federal courts and not State courts have the priority authority to interpret the U.S. Constitution and the Washington State Court’s dictum (which does not rise to the level of legal precedent) doesn’t change the Tenth Circuit’s ruling on the Constitutionality of a faithless vote. Its only legal effect was to impose a fine on a faithless Washington State Elector. Baca’s faithless 2016 Colorado vote stands … and subsequent faithless votes also will stand unless the Supreme Court overrules the Tenth Circuit.

Considered in this light, what opportunities for abuse options do State legislatures have? The Constitution states that “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.” If a State has a heavily Republican or heavily Democratic Legislature, how might the Constitution be manipulated to the benefit of that party interpreted to ensure a fair democratic process?

The heavily Democratic Washington State legislature has worked hard in an effort to prevent the sort of “faithlessness” evinced in In re Guerra rather than encourage it to the majority party’s benefit. Its new “Uniform Faithful Presidential Electors Act” repeals the State’s ineffective $1,000 penalty and instructs Washington’s Secretary of State to examine each Elector’s vote for President and reject any vote not in accordance with the majority vote. In light of the decision in Baca v. Hickenlooper, however, Washington State’s new law apparently would be found unConstitutional.

Colorado has passed a new law somewhat different from Washington’s anti-faithlessness one that would award all of its electoral votes to the winner of the national popular vote; however, that law will become effective only if States controlling at least 270 votes – the number required to elect the President – adopt a similar law (referred to as the “National Popular Vote Interstate Compact”). So far, only 15 States and Washington, D.C., with 196 total electoral votes, have passed national popular vote laws. Should States with 270 electoral votes sign on, the National Popular Vote Interstate Compact arguably would amount to a de facto Constitutional Amendment that would displace of the Electoral College system (at least until such time as the threshold number of States chose to back out). If so, there no longer would be “battleground States” (the economies of which benefit from Presidential elections), voters in heavily partisan States like New York, California, Kentucky, Louisiana and Alabama no longer would feel that their votes were useless, and voter turnout might well increase. Many advocates believe that would be good for democracy.

What if a State’s legislative majority party (Republican or Democrat) passed a law that gave the power to appoint Electors to the State legislature irrespective of the State’s (or the nation’s) popular vote … and then appointed partisan Electors from its own party, thereby depriving the State’s citizens of their political franchise? The Tenth Circuit’s decision appears to support such an effort. In 2019’s partisan world, that outcome can’t be ruled out.

Finally (from Charles Schulz)

*┬® Copyright 2019 by William Natbony. All rights reserved.