Are Electors Free to Choose?
SCOTUS and "faithless electors."
Anyone who has read this site for any amount of time is aware that I am a critic of the Electoral College. It is an ill-conceived institution that performs no defensible function superior to a popular vote. The best case to be made for the EC is that it has normally simply reflected the popular vote and therefore could be dismissed as no harm, no foul. Despite many public defenses of the EC it does not create some kind of special representation that balances large and small states nor does it produce regional fairness.
It is, quite simply, a system that gives more weight to smaller population states–it literally makes some citizens’ votes count more than others. And the distortions that that weighting creates has increased over time as the gap between largest and smaller population states have grown. Note, too, that the EC originally was based on the thirteen original states and did not conceive of vast states the size of Wyoming with barely any people in them nor behemoths like California or Texas (both in terms of area and population).
Moreover, it does not, as is often argued, give small states extra special attention in elections so that they don’t get ignored (nor do big states get special attention). No, swing states are the ones that get extra special attention.
As we all know, people in the states vote and the candidate who wins the plurality of the vote in each state wins a slate of electors. Each state is an electoral district with multiple seats. The plurality winner wins all the seats (the electors). Maine and Nebraska each have a state-wide district of two electors, and then have single-elector districts in each of their House districts.
Electors cast their ballots in their state capitols in December and those votes are counted in the US Congress in January.
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.
The Electors shall meet in their respective States, and vote by Ballot for two Persons…
It is clear: the states appoint electors and electors vote for president and vice president. The people of the United States do not have any constitutional right to vote for president nor any guarantee they would have any specific role in choosing them.
It should be noted that the Framers thought that the electors would frequently be unable to have absolute majority agreement and therefore that the House would choose the President. This did not come to pass (happening all of twice and one of those was because of a design flaw that was later fixed). Instead, the EC quickly evolved from a deliberative body into a messenger system. The states would vote on a slate of electors to reflect that state’s preference for president and those electors would vote as a bloc. The usage of the popular vote to choose the electors evolved in the early-to-mid Nineteenth Century, meaning the plurality preference of the state became the whole state’s preference in toto.
Slates of electors have been selected by political parties, thus ensuring their loyalty to the plurality vote of the state. In every state in 2016 the Republicans choose their potential electors, the Democrats theirs.
Occasionally, an elector would deviate from the mission given to them. These have been termed “faithless electors.” They are rare and have never changed an EC outcome, but they potentially could (although the probability of such an outcome is near zero). Many states fine electors who do not follow their state’s will, others can replace the unfaithful. There is a case before the US Supreme Court about whether states can require electors to be faithful.
The Economist reports: America’s Supreme Court considers the rights of “faithless” presidential electors.
So-called “faithless” electors are rare, but nothing new. Ninety electors since 1796 have cast a ballot for someone other than their party’s elected nominee, including 63 who sought to replace candidates who had died after the general election. Some 27 electors have simply scrapped their pledged candidate in favour of another.
Let me note: really only 27 faithless electors over two-plus centuries, so not a massive problem. It should be noted that 2016 had an unusually high number of faithless electors. Note that “an unusually high number” was seven.
The results of some of the above-noted lack of faith had some consequences (back to The Economist):
Some defectors ran into legal trouble. Peter Chiafalo from Washington was fined $1,000 when he selected Colin Powell rather than Mrs Clinton in an attempt to throw the election to Congress. Michael Baca of Colorado found himself replaced with a more obedient elector when he tried to change his vote from Mrs Clinton to John Kasich, the former governor of Ohio. Both men say the constitution protected their right to do so.
It is my opinion that the Constitution clearly gives the vote to the electors and practice has reinforced this fact (Congress has always counted those votes). One could, perhaps, argue, that the state’s appointment power gives them control of the vote (but that strikes me as a weak argument–and why even have human beings as electors if they have zero agency?). I think, too, one could argue that states can fine the faithless but that the faithless vote still counts. I suppose that the appointment power could give states the right to replace an elector, as per the Colorado case.
Ultimately, given the partisan nature of the selection of electors, it is highly unlikely that an outbreak of faithless electors could change the outcome of an election. It is worth noting that most faithless electors are protest votes from the losing party. Five of the seven faithless electors in 2016 were Democrats. The two GOP examples of faithlessness are the real oddity. Both were from Texas, one vote for Kasich and the other for Paul.
Most elections have such a wide gap between electoral winner and electoral loser that the amount of faithlessness needed to swing the election would be unthinkable. Although an election like 2000 shows how it could matter, given that the final was 271 v. 266 (with one abstention, a Democratic protest).
At any rate, it will be interesting to see what the Court rules, but I don’t think it matters, ultimately. I cannot stress enough that the process of choosing electors is guaranteed to produce loyalists. There is no reasonable scenario in which electors as a group will ever act like a deliberative body. History and logic clearly demonstrate this. Whatever ruling the Court makes will be at the most marginal of the margin.
If we are really worried about faithful representation of the popular will, here’s an idea: just let the people choose their president like every other presidential democracy on the planet.
SCOTUSblog has more: Argument preview: Justices to weigh constitutionality of “faithless elector” laws