Faith­less elec­tors have a right to be un­faith­ful

The Saratogian (Saratoga, NY) - - OPINION - Ge­orge Will Ge­orge Will’s email ad­dress is [email protected]­

The Supreme Court will soon de­cide whether to de­cide a dis­pute be­tween lower courts about a re­cur­ring prob­lem that has not been a se­ri­ous prob­lem. If, how­ever, “faith­less elec­tors” ever be­comes such a prob­lem, it would pro­pel the court into a po­lit­i­cal mael­strom with high stakes and in­tense pas­sions, with an in­flex­i­ble dead­line im­pend­ing. So, the court should an­swer this ques­tion: Do “faith­less elec­tors” have a con­sti­tu­tional right to be such?

They are per­sons who are se­lected to cast a state’s Elec­toral Col­lege votes and who, af­ter the pop­u­lar votes have been tab­u­lated, vote con­trary to their pub­lic com­mit­ment, to the pub­lic’s ex­pec­ta­tions, and to state statutes that pe­nal­ize elec­tors who vote con­trary to the party they were des­ig­nated to rep­re­sent.

In 2016, 10 of the 538 des­ig­nated elec­tors ei­ther cast their votes for per­sons other than the nom­i­nees of these elec­tors’ par­ties, or tried to and were blocked from do­ing so. A change of 10 elec­toral votes would have switched the out­come of five of the 58 pre­vi­ous elec­tions.

In Wash­ing­ton state, three Demo­cratic elec­tors voted for Repub­li­can Colin Pow­ell rather than Hil­lary Clin­ton, and each was fined $1,000. Wash­ing­ton state’s Supreme Court up­held the fines, ar­gu­ing that “noth­ing in [the Con­sti­tu­tion] sug­gests that elec­tors have dis­cre­tion to cast their votes with­out lim­i­ta­tion.” In Colorado, how­ever, a Demo­cratic elec­tor voted for Ohio Repub­li­can Gov. John Ka­sich rather than Clin­ton, and Colorado’s sec­re­tary of state nul­li­fied this vote.

But the U.S. Court of Ap­peals for the 10th Cir­cuit held that pres­i­den­tial elec­tors have “the right to cast a vote for pres­i­dent ... with dis­cre­tion.”

Clearly Wash­ing­ton’s court was mis­taken, as are the ma­jor­ity of states, in­clud­ing Wash­ing­ton and Colorado, that have laws deny­ing elec­tors dis­cre­tion. Wash­ing­ton’s court was cor­rect that noth­ing in the Con­sti­tu­tion grants dis­cre­tion. But noth­ing de­nies it. The Con­sti­tu­tion says that each state shall ap­point elec­tors “in such man­ner as the leg­is­la­ture thereof may di­rect.” The Wash­ing­ton court de­cided sim­ply that the state power to choose the man­ner of se­lect­ing elec­tors is “ab­so­lute” and — non se­quitur alert — there­fore in­cludes each state’s dis­cre­tion to deny dis­cre­tion to the elec­tors.

A con­trary con­clu­sion is jus­ti­fied by Congress’ prac­tice of count­ing and ac­cept­ing votes that elec­tors cast for can­di­dates other than those the elec­tors were pledged to sup­port.

This prac­tice of re­spect­ing elec­tors’ dis­cre­tion is con­gru­ent with found­ing-era de­bates about, and be­hav­ior of, pres­i­den­tial elec­tors. In Fed­er­al­ist 68, Alexan­der Hamil­ton jus­ti­fied re­gard­ing elec­tors as in­de­pen­dent ac­tors be­cause “a small num­ber of per­sons, se­lected by their fel­low cit­i­zens from the gen­eral mass, will be most likely to pos­sess the in­for­ma­tion and dis­cern­ment req­ui­site” for the com­plex and mo­men­tous task of se­lect­ing a pres­i­dent.

The fact that the Elec­toral Col­lege no longer func­tions as the Framers in­tended is ir­rel­e­vant to the ques­tion of whether elec­tors are in­de­pen­dent ac­tors.

If the Supreme Court re­solves the con­flict be­tween the Wash­ing­ton court and the 10th Cir­cuit, and does so in the 10th Cir­cuit’s fa­vor, it will ac­com­plish two things, one of prospec­tive im­por­tance and one of im­me­di­ate im­por­tance. It will guar­an­tee that, in the event that in some fu­ture elec­tion faith­less elec­tors are nu­mer­ous enough to al­ter an elec­tion’s out­come, the court will at least not have to start from scratch in think­ing through the is­sue of whether elec­tors have a right to be un­faith­ful.

And by af­firm­ing that right, the court will make less likely the ex­er­cise of that right. This is so be­cause the court will in­cen­tivize state po­lit­i­cal par­ties to be dili­gent about se­lect­ing stead­fast elec­tors.

This might mat­ter now more than usual. Amer­ica’s in­creas­ing po­lar­iza­tion has been ap­par­ent for sev­eral decades. In the first 11 elec­tions af­ter World War II, 19481988, seven times the vic­tor won more than 400 elec­toral votes, and twice he won more than 500. Since 1988, no one has re­ceived 400 elec­toral votes, and the win­ners have av­er­aged just 330. Since 1988, ev­ery elec­tion has had a pop­u­lar-vote mar­gin of less than 10%.

Nar­row pop­u­lar-vote mar­gins do not guar­an­tee close elec­toralvote mar­gins: One of the Elec­toral Col­lege’s virtues is that it tends to mag­nify the de­ci­sive­ness of the vic­tor’s vic­tory. How­ever, close par­ti­san bal­ances in the pop­u­lar vote in­crease the chances of a nar­row mar­gin in the Elec­toral Col­lege.

In 2000, Ge­orge W. Bush, who lost the pop­u­lar vote to Al Gore, won the pres­i­dency by win­ning Florida by 537 votes, thereby win­ning in the Elec­toral Col­lege by five votes.

Close elec­tions in tur­bu­lent times can ex­cite rogue elec­tors. That they have a right to be such does not make them whole­some.

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