John Sexton was just writing yesterday about ongoing harassment of and threats to the electors in advance of tomorrow’s vote, but the questions which have come up this cycle are going to linger well into the future. At this point it seems to me as if there’s almost zero chance of a 100% clean vote with all of the electors casting ballots reflecting the will of the voters in their respective states. But at the same time, the number of faithless electors should (hopefully) be too low to really change anything.
In case you’re unfamiliar with the process, Jamie Dupree provides a good rundown of how the vote actually takes place. The electors don’t all get together in one huge hall. They cast their votes at various times in their home states as directed by state law. We’ll know some of the results tomorrow, while others won’t be released until later. None of them are “official” until certified by a Joint Session of Congress on January 6th.
So will any of them “go rogue” on us? Dupree doesn’t see it as likely.
What if some electors change their votes on Monday?
Just like when you fork over a few bucks to play the lottery, you have a slight chance to win; therefore, there is a slight chance that the electors could screw with things and deny Donald Trump the 270 votes needed to be the President. Looking back, there are individual examples through the years of what are labeled “faithless electors,” who decide to vote for someone else. In 1836, the 23 electors from Virginia didn’t vote for Vice Presidential candidate Richard M. Johnson; ultimately, the Senate approved him as Vice President anyway. So yes, it could happen. But I’m not sure I would bet on a change in the outcome.
Even if everything goes off relatively smoothly tomorrow, the gauntlet has been thrown down in terms of whether or not the electors can or should be able to overturn an election. The details of how it all works on paper are somewhat convoluted and even the courts are struggling with the question. First of all, more than half the states have penalties in place for faithless electors, but 21 states don’t require them to vote in accordance with the outcome of the election. The Constitution doesn’t say they have to, but states can and do add on additional requirements forcing them to take an oath and honor the results. (See Ray v. Blair for more on that decision.)
That precedent stands in contrast to a court decision on Friday night in Colorado, where three judges at least hinted that it may not be allowable to remove a faithless elector once the voting has started and replace them with someone who will uphold their oath. (Politico)
A U.S. Appeals Court appears to have left open a narrow path for more members of the Electoral College to ditch Hillary Clinton and Donald Trump.
In a footnote appended to an order issued late Friday in a Colorado lawsuit, a three-judge panel of the 10th Circuit Court of Appeals suggested state officials may be constitutionally barred from removing electors once they’ve started voting.
In their order, the judges said any attempt by Colorado Secretary of State Wayne Williams to remove electors “after voting has begun” would be “unlikely in light of the text of the Twelfth Amendment.”
While there have been some minor skirmishes over individual electors over the years (and a seriously large one in 1836) we haven’t generally politicized the Electoral College all that much. But in the 21st century, everything is up for grabs because politics is now generally accepted as being a bloodsport. Many of our government institutions have operated over the centuries essentially on the honor system, largely because the Founders assumed that those in positions of power would likely be unwilling to do anything too untoward. Well, they never saw 2016 coming, obviously.
We may be forced to fix this situation, but I’m not exactly sure how. You can forget talk of a constitutional amendment either eliminating the Electoral College and going to a popular vote model or creating unbreakable mandates for how the electors must vote. Even if the will existed to do either of those things it would take decades to gather sufficient support and push a new amendment through the process. But the states already have it in their power to make modifications to the system. (We can again refer to the states which mandate an oath from electors or the ones which split their electoral votes, like Maine and Nebraska.) Could all of the states get something relatively uniform on the books along these lines? Or even more drastically, could a federal law impose some sort of consistent rule? (That one is troubling to even type out.)
I remain unsure, but this conditions on the ground are getting ugly. The stage has been set for some sort of sore loser, electoral college revolt the next time enough people are angry about the outcome of an election. Even if it’s not happening this year, you can easily imagine it taking place in your lifetime. We’d be wise to figure out how to patch this system up before the dam breaks entirely.