Off the Kuff Rotating Header Image

You can’t stop the faithless electors

So says Carolyn Shapiro, associate professor at IIT Chicago-Kent College of Law, where she is co-director of the Institute on the Supreme Court of the United States.

Earlier this week, in a New York Times op-ed, Texas presidential elector Chris Suprun announced that he would not be casting his vote for Donald Trump. Even though Texas voters chose Trump, Suprun—along with a small group of electors from around the country calling themselves “Hamilton Electors”—will vote for a yet-to-be-identified compromise Republican. As Suprun explained in his op-ed, and as I and others have detailed elsewhere, Donald Trump’s conduct since the election has demonstrated that he is dangerously unqualified and unfit to be president.

Can electors legally do this? While the nearly universal expectation is electors’ votes will reflect the popular vote in their states, the Constitution doesn’t require them to. As others have explained, Alexander Hamilton’s justification for the Electoral College in Federalist No. 68 shows that the Framers intended for electors to exercise their own judgment when necessary.

Many states, however, have laws that prohibit these so-called “faithless electors” (perhaps a better term would be “conscientious electors”) from bucking the state popular vote. This week, two electors filed suit in federal court arguing that Colorado’s version is unconstitutional. (Hillary Clinton won Colorado, but the plaintiffs hope that a victory in their lawsuit will effectively invalidate all such laws, allowing electors in Trump states to defect.) In addition to arguments based on the Framers’ intent, there is a strong argument based on constitutional structure and text, and on Supreme Court precedent, that these electors should prevail.

The Constitution gives the states authority over how to choose electors. Article II, Section 1 provides that “[e]ach State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors…” But the Constitution does not authorize states to tell the electors, once selected, how to vote.

The Twelfth Amendment, which was ratified in 1804, spells out the electors’ duties in more detail. And it, too, defines the duties of electors without giving the states or state officials any role in defining or enforcing those duties. “The Electors shall meet in their respective states, and vote by ballot for President and Vice-President …,” it says, and then goes on to explain that the electors should each cast two ballots: one for president and one for vice president. The electors, and only the electors, are directed to count, certify, and seal their votes, and to send the results directly to Washington. This allocation of responsibilities suggests that the Framers wanted to insulate the electors from the states’ influence or interference once they are appointed.

See here for the background, and be sure to read the rest. I kind of doubt Dan Patrick’s effort to bound electors will go anywhere, mostly because I doubt he’ll care enough to spend time and effort on it when he has much bigger fish he wants to fry, but you never know. What I do know is that I welcome the conversation about the role of the Electoral College, both as originally envisioned and in today’s world. Either we own and embrace what it was designed to do, or we should admit that it’s an anti-democratic anachronism and get rid of it.

Related Posts:

10 Comments

  1. Bill Daniels says:

    “… or we should admit that it’s an anti-democratic anachronism and get rid of it.”

    @Kuff,

    A pure democracy is a scary thing. We have a constitutional republic, and it is intentionally made hard for us to change things. This was all designed to protect the rights of the minority from the majority. Our freedom loving forefathers were the minority back in the day, with their crazy ideas of not bowing down to king and wanting autonomy over their own lives and businesses.

    Here’s a good example of what I am talking about….the HERO. The people elected a mayor and city council to make decisions in their name. They did, passing the HERO. A pure majority of the people did not want the HERO, and they got it put on the ballot, where it was defeated, handily. It is a short path from pure democracy to mob rule, and that should give pause to liberals, conservatives, and libertarians when they entertain the thought of doing away with the EC.

    Of course, the true measure of someone’s position on the EC would surface if that person thoughtfully answered the question, “if my candidate had won the EC but lost the popular vote, would I still feel the same way?”

    Another example, while not exactly apples to apples, is the “nuclear option.” When Harry Reid got that one through, it seemed like a good idea to Dems. How do those same folks feel now that roles are reversed?

  2. Flypusher says:

    Having a President who wins the EC but loses the popular vote creates political problems; that person automatically takes office from a position of weakness. Irrespective of party.

    I agree 100% with Charles’ take here. Federalist #68 and the 12th Amendmemt make it clear that the EC was intended as a last check on an unfit candidate. That means that the electors should have no restrictions like the ones Patrick would seek to impose. Free them or get rid of them.

    Very interesting that some of the electors are requesting more info from the CIA about Russian hacking. I still doubt enough of them are going to declare the emperor to be buck naked, but 2016 ain’t over yet. Stay tuned.

  3. brad m says:

    Bill,

    You miss the point…again.

    The Electors will still be choosing the president regardless. Not the popular vote.

    Pure democracy is not a scary thing, but you are always seeing the boogie man.

    It’s easy to play the game and provide examples of issues where the American public feel a certain way, but the elected officials are not putting that public opinion into law. You conveniently left out the inaccurate information in the anti-HERO vote campaign.

    I will say that Trumps narcissism, megalomania and wilful ignorance is scary.

  4. Bill Daniels says:

    Good point, Flypusher. Laws preventing electors from going rogue do seem to violate the original intent of the Constitution.

  5. Neither Here Nor There says:

    The original writers of the constitution were not gods or God, like all men they screw up some times.

    Women are chattel, one

    Men and women as slaves, two

    and on and on

  6. Bill Daniels says:

    @Brad:

    I want you to think about what a pure democracy really means. Take crime and punishment. Do you think Houstonians are tired of being victimized by criminals? In a pure democracy, we could just vote for cops to go ahead and actually stop crime, permanently, Judge Dredd style. Case in point: Chad Holley. Had the majority of Houstonians decided that criminals will no longer be tolerated, HPD would have had free reign to stomp Holley to death for the 2010 burglary, saving all his subsequent victims from harm, including, it would appear, the guy he is now charged with killing. That actually sounds good to me, until I think it through, and am glad that people accused of crimes (the minority of citizens, hopefully) have rights that protect them. This is a good thing, because you and I never know when we might be falsely accused of committing a crime, and we wouldn’t want Judge Dredd style justice imposed on us without an opportunity to prove our innocence.

    With regards to Trump, do I think he will overreach, as Obama, and Bush before him, have done, repeatedly? Yes. And that’s where a loyal opposition comes in, to point out those overreaches, and to sue for redress, to stop them . And even though Populist Bill will silently support most of those overreaches, Libertarian Bill will support the opposition to Trump, when he goes too far.

  7. Bill Daniels says:

    @Neither:

    True, yet we have used the very framework they provided to improve the Constitution, with a few notable exceptions, like Prohibition. Those imperfect old white dudes did pretty good, for the time period they lived in.

  8. Flypusher says:

    I’m quite happy to judge each original intent case on it’s own merits. Obviously things like the 3/5 compromise have been judged to be bad and discarded. Time to pass judgment on the EC. Do we want it as a last check on an unfit candidate or not?

    If ever there was a test case, this is it. Trump’s unsuitability is without precedent. A small part of me wants to see the Trump voters get what they voted for, good and hard. But most of me is alarmed at the damage a Trump admin could do. The EC or House picking a different GOPer would also do damage, but I judge that to be the lesser evil. Not counting on it, but rooting for it.

  9. Neither Here Nor There says:

    Flycatcher as long as he keeps his little fingers away from the red button, we will get stronger because of that idiot or as a former marine use to call Trump to his face “Draft Dodging Bastard”. Now they wanted Trump let them keep him.

  10. Joel says:

    people who make definitive, categorical, black/white claims about concepts like “pure democracy” (and who defines that, pray?) v. “(constitutional) republics” merely display their lack of understanding of either.

    these are nuanced concepts, each of which could be delivered (or not, in the case of the US) via a multitude of possible institutional arrangements, many of which would be acceptable to both. in theoretical terms, the concepts are not mutually exclusive, in other words, and almost *never* dispositive in whatever debate the distinction is smugly invoked.

    and in practical terms, the US is neither a democracy nor a republic anyway. the election of oligarch/tyrant in chief should have settled that once and for all.