Can the Elec­toral Col­lege go rogue?

Baltimore Sun - - COMMENTARY - By Syl So­bel Syl So­bel is an at­tor­ney and the au­thor of chil­dren’s books on U.S. his­tory and gov­ern­ment, in­clud­ing “Pres­i­den­tial Elec­tions & Other Cool Facts” and “The U.S. Con­sti­tu­tion and You.” His web­site is www.syl­so­bel.com.

When the Found­ing Fa­thers cre­ated the Elec­toral Col­lege as the method for se­lect­ing the pres­i­dent, they en­vi­sioned an “assem­bly of wise men and learned el­ders” who would vote in­de­pen­dently and make up their own minds about who should be pres­i­dent and vice pres­i­dent.

Over time, how­ever, the Elec­toral Col­lege has not worked out quite as the founders planned. As po­lit­i­cal par­ties grew in in­flu­ence and gained more con­trol over the elec­toral process, the Elec­toral Col­lege has acted less as an in­de­pen­dent vot­ing body and more as a rub­ber stamp of what the vot­ers do on Elec­tion Day.

Now, ac­cord­ing to laws in most states, po­lit­i­cal par­ties se­lect elec­tors for their party, and when some­one votes for a can­di­date on Elec­tion Day they are es­sen­tially vot­ing for the elec­tors from that can­di­date’s party. Thus, if the pop­u­lar vote in a state chooses the Repub­li­can can­di­date, for ex­am­ple, the Repub­li­can party’s elec­tors will cast the elec­toral votes for that state — most likely for the Repub­li­can can­di­date. So we pretty much know whow­ill be pres­i­dent shortly af­ter Elec­tion Day and weeks be­fore the Elec­toral Col­lege ac­tu­ally votes on the first Mon­day af­ter the sec­ond Wed­nes­day in De­cem­ber.

But does it have to be that way? What if, not­with­stand­ing what the vot­ers did on Elec­tion Day, some elec­tors de­cided that they wanted to act “wise” and “learned” and vote for some­one other than their party’s can­di­date? Could we ac­tu­ally have an elec­tion where we don’t know who will be pres­i­dent un­til af­ter the Elec­toral Col­lege votes?

The an­swer to that ap­pears to be a re­sound­ing and provoca­tive “yes.”

About half of the states and the District of Columbia have laws or party pledges that re­quire elec­tors to vote ac­cord­ing to the pop­u­lar vote. Some states go fur­ther and have laws that au­tho­rize fines on so-called “faith­less elec­tors” or in­val­i­date their votes and al­low re­place­ment by sub­sti­tute elec­tors.

But here’s where it gets in­ter­est­ing. The con­sti­tu­tion­al­ity of these state laws that pe­nal­ize faith­less elec­tors has never been tested. A1952 Supreme Court de­ci­sion held that re­quir­ing a pledge was con­sti­tu­tional, but it did not say whether such a pledge can ac­tu­ally be en­forced. Sim­ply put, while the Con­sti­tu­tion al­lows states to de­cide how to choose elec­tors, it does not ap­pear to al­low the states to tell their elec­tors how to vote. More­over, al­most half of the states don’t have laws that ob­li­gate elec­tors to vote for the win­ner of the pop­u­lar vote; in those states, elec­tors can al­most cer­tainly vote their minds.

Wikipedia lists some179 faith­less elec­tors in pres­i­den­tial elec­tions since1796, but none have af­fected the out­come of an elec­tion. The ques­tion is, if enough elec­tors de­cided to vote as they chose no mat­ter whowon­the pop­u­lar vote, could they swing an elec­tion?

For ex­am­ple, let’s say a large num­ber of Repub­li­can elec­tors de­cided that they did not want to vote for Don­ald Trump, even if he wins the pop­u­lar vote in their state. What if some of those elec­tors an­nounced that if the vot­ers se­lected the Repub­li­can can­di­date in their state on Elec­tion Day, they were ac­tu­ally go­ing to cast their elec­toral votes for Can­di­date X (you fill in the blank). Could that in­flu­ence some peo­ple — in­clud­ing Democrats — to vote for the Repub­li­can can­di­date on the be­lief that even though Mr. Trump’s name was on the bal­lot, they were ac­tu­ally vot­ing for some­one else? If enough peo­ple did that, could it change the math in the elec­toral race by, if not giv­ing Can­di­date X a vic­tory out­right, cre­at­ing a three-way race that could end up in the House of Rep­re­sen­ta­tives for fi­nal de­ter­mi­na­tion? And then, what might hap­pen in the courts in the af­ter­math of an Elec­toral Col­lege that went rogue?

This has been an ex­tra­or­di­nary elec­tion year. Many things have hap­pened that no one ever ex­pected to see in a United States pres­i­den­tial elec­tion. No doubt, even more sur­prises are ahead. In a year where we­have learned to ex­pect the un­ex­pected, noth­ing may be cer­tain un­til the fi­nal elec­tor in the fi­nal state has cast the fi­nal vote some six weeks af­ter Elec­tion Day — and maybe even not then.

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