Could 'rogue electors' tilt the balance of the US election?
It’s 3 November 2020, election day. The most expensive – and nastiest – presidential race in US history is over. Turnout is light, but only because the Covid-19 pandemic has led tens of millions to abstain or vote by absentee ballot. By the time polls close on the west coast, the race remains too close to call. But shortly after midnight, the major networks announce that Joe Biden has eked out the narrowest of victories, with the former vice-president winning 271 electoral college votes to Trump’s 267.
Only something goes very wrong on 14 December 2020. That is the day on which electors across the nation meet in their respective state capitals and officially cast their votes. The balloting proceeds as anticipated – except in Pennsylvania and Illinois, two states that Biden carried. In Pennsylvania, three of the electors pledged to Biden break ranks and vote for Bernie Sanders. The same thing happens in Illinois, with three Democratic electors likewise casting their votes for Sanders. Why they have done so is not entirely clear – rumors about foreign interference fly – but the result is startling. Trump now leads in the electoral college 267 to 265.
In Illinois, where Democrats control the state legislature, lawmakers condemn the rogue electors and seek to replace their votes with votes for Biden. In Pennsylvania, where Republicans control the statehouse, lawmakers hail the Sanders electors as patriots and insist their colleagues in Illinois are trampling on the “faithless” electors’ constitutional rights.
Who is correct? May states penalize and replace electors who fail to vote in accord with their states’ popular vote outcomes, or do such actions violate the right of electors to vote free of legal control?
That was the question debated before the supreme court this week in an extraordinary oral argument. At issue were a pair of cases emerging from the 2016 election, which witnessed no fewer than 10 electors either voting, or trying to vote, in defiance of their pledge. In Colorado, a state Hillary Clinton handily won, three Democratic electors sought to vote for the Ohio governor John Kasich as part of a longshot effort to find a consensus alternative to Donald Trump. The Colorado secretary of state ordered the three to cast their votes as state law required or face replacement. Two of the electors complied; the third, a 23-year-old graduate student named Michael Baca, refused, and found himself replaced by a Democratic elector, who then promptly cast his vote for Clinton.
Baca filed suit, and last August a divided federal appellate court ruled that “electors, once appointed, are free to vote as they choose.” Yet three months earlier, in May 2019, the Washington state supreme court reached the opposite conclusion, holding that a state may use its criminal law to enforce electoral pledges.
Which lower court got it right?
The court’s spirited – and lengthy – argument made two things clear. First, that constitutional text, history and structure manifestly support the proposition that electors were meant to vote freely. When the framers of the constitution weighed how the nation’s chief executive should be chosen, they worried that ordinary voters in a national election would prove incapable of making an informed choice about the candidates. Elbridge Gerry, who decades later as governor of Massachusetts would carve a congressional district into the shape of a salamander and so bequeath us the term “gerrymander”, warned of the “ignorance of the people”, fearing they would be “too little informed of personal characteristics in larger districts and liable of deceptions”.
So the framers settled on an electoral college, to be composed of persons of higher political standing, capable of exercising informed choice and reasoned deliberation. In Federalist No 68, Alexander Hamilton argued that entrusting the task to such men “affords a moral certainty, that the office of president will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications”.
That, at least, was the idea. But, as this week’s oral argument made clear, practice quickly eclipsed theory. It only took a couple of decades for our modern system to emerge – in which electors ceremonially vote for their state’s popular vote winner. As early as 1816, Rufus King, who had been a delegate to the constitutional convention, ruefully observed that electors now functioned as “mere … toys that nod when … set in motion”.
Today, most people would agree that is how electors should act – which is why 32 states and the District of Columbia now have laws that aim to make sure that electors do not vote “freely” as they were originally intended. The oral argument suggests the court is not about to upset those laws. Even those justices – such as Clarence Thomas and Samuel Alito – most faithful to hewing to the constitution’s original meaning appeared chary about upholding the right of electors to go rogue. As Justice Brett Kavanaugh observed, the court likes to adhere to an “‘avoid-chaos’ principle of judging”. And chaos could well result in a close election in which a handful of electors choose to go their own way.
It seems safe to expect that the court – in a ruling to be issued this summer – will uphold the states’ authority to constrain presidential electors. But will the court’s decision save us from the scenario described above?
Alas, no. Pennsylvania and Illinois are two of the 18 states that place no constraints on their electors whatsoever. In the absence of a law in place before electors cast their votes, it isn’t clear that a state could replace a faithless elector. A handful of rogue electors could hypothetically trigger a crisis of succession with no clear exit.
Of course, the entire problem of the rogue elector could be more elegantly solved by simply abolishing the electoral college, but that would require a constitutional amendment, and the process of amending the constitution is no less dysfunctional than the electoral college itself. So the electoral college will probably remain our constitutional appendix, a vestigial organ that has long since lost its animating function and now can only create potentially toxic problems for the body politic.
Lawrence Douglas is the author, most recently, of Will He Go? Trump and the Looming Electoral Meltdown in 2020, to be published by Twelve/Hachette on May 19. Douglas holds the James J Grosfeld Chair in Law, Jurisprudence and Social Thought, at Amherst College, Massachusetts, and is also a contributing opinion writer for the Guardian US
A handful of rogue electors could hypothetically trigger a crisis of succession with no clear exit