With barely a week to go before the primary voting begins, some of our media analysts are already fretting over whether or not the loser of the election in November will “accept the results of the election” or refuse to concede. That linked article is clearly making a reference to President Trump, but the author also suggests the possibility that if Trump once again loses the popular vote but wins the electoral college, liberals will claim that “voter suppression” in Florida will have rendered the election invalid. (Just for the record, I’m old enough to remember the last time a presidential candidate refused to accept the election results. His name was Al Gore.)
But others have a different scenario in mind. What if Trump wins the electoral college but some the electors decide to “save us” from our own decision by casting their votes as faithless electors? It’s not an entirely imaginary scenario. In fact, the Supreme Court is currently considering a case involving just such an elector. In 2016, an elector from Colorado named Micheal Baca was supposed to vote for Hillary Clinton. (Clinton carried the state handily.) Instead, he tried to cast his vote for John Kasich in violation of state law. (NBC News)
One of the “faithless electors” at the heart of a coming Supreme Court case says he’s “thrilled” that the high court will take on the issue and has no regrets about how he cast his Electoral College vote for president — even though it went against the wishes of his state’s voters…
That decision — a violation of a law in Colorado (and in 29 other states) requiring electors to cast their votes in accordance with the results of the popular vote — triggered the legal avalanche that has now gone all the way to the Supreme Court after the justices agreed last week to hear the case.
Four years later, Baca, 27, a government teacher at a Las Vegas high school, isn’t looking back — and he’s rooting for the high court to grant all Electoral College members “total elector freedom.”
Baca’s plan doesn’t exactly paint a picture of the fastest tractor on the farm. He claims that he was aiming to try to prevent Trump from taking office. But his method was to remove one electoral vote from Hillary Clinton and transfer it to a guy who wasn’t even on the ballot? We’ll find out later this year whether or not the state laws forbidding faithless electors are constitutional or not.
As much as we may hate to admit it, Baca’s claim isn’t entirely without merit in constitutional terms. While not specifically explained in the Constitution, the purpose of the electoral college was much discussed and debated among the founders, and their writings are often taken into account by the courts when considering such questions. In Federalist 68, Hamilton famously described the electoral college as “an intermediate body of electors… much less apt to convulse the community with any extraordinary or violent movements.”
That word “intermediate” has often been pointed to as the smoking gun, showing that the signatories of the Constitution intended for there to be an option in place to thwart the will of the voters. And such a momentous choice was to be made by “men most capable of analyzing the qualities adapted to the station” (of President). One can probably assume that Baca views himself as one of those most capable analysts. Your mileage may vary.
It’s easy to say that if laws barring faithless electors are overturned and a sufficient number of these people changed the outcome of the election that the nation would revolt. But would we? Or, more properly, would all of us? The country is so firmly and vehemently divided along partisan lines right now that I’m not at all confident of that sort of prediction. If Trump wins the electoral college vote but the electors flip over to give the win to the Democrat, I’m not so sure that the liberal, Democratic rank and file across the country would object. Similarly, if the Democrat wins but a handful of electors gave it to Trump anyway, I doubt many Republicans would be taking to the streets in revolt.
In either scenario, the Supreme Court would need to be dragged into the fray immediately because we would then truly be in the grip of a constitutional crisis. And if a significant majority of the country turns out to be unwilling to accept the court’s decision, that could pretty much be it for the great American experiment.
Is that going to happen? Highly doubtful. One of the main reasons is that both parties have been reevaluating their process for appointing electors. Previously, that honor was often handed out like candy to various, popular party officials who may or may not see eye to eye with the rest of the party. But given how things are going these days, the electors are, without question, being vetted six ways from Sunday to ensure that they are the most vehement party loyalists and stalwarts available. Those chosen by the GOP will be Trump absolutists up and down the line. The people sent by the Democrats will be similarly ready to go to the wall for their nominee.
While the Baca case is interesting from a legal and constitutional perspective, don’t lose too much sleep over the results either way. I’m confident that our nation isn’t close to crashing down around our ears. Or at least… not yet.