by Richard Cameron

The Electoral College, “Faithless Electors” and the 2020 US Presidential Election

As if the uncertainties that loom over the 2020 Presidential election are not severe and sobering enough, mainly featuring the ongoing efforts of the Russian regime of Vladimir Putin to subvert America’s most vital democratic process – another contingency has emerged which might be added to the mix, “faithless electors”.

Now – faithless electors, might at first blush, seem like a term of scorn, a badge of disgrace, a political Scarlet Letter, but once we examine it, you might come to a different conclusion.

There is a wave of sentiment emerging among voters and legislators that is questioning the relevance and usefulness of the Electoral College.  A recent NBC News–Wall Street Journal survey reports that 53 percent of voters say the presidential election should hinge on the popular vote, while 43 percent favor keeping the Electoral College system in place.

While that is an issue that is not going to be settled in the near future, there is a short term exigency that could  materialize – that being the question of the responsibilities and obligations of each state’s electors. This has potentially calamitous implications for the 2020 election, which we will examine.

The issue centers around this – are designated electors obligated to ratify, through their submission of ballots, the candidate chosen by the majority of voters – or are they at liberty to arbitrarily select that candidate’s opponent during the convening of electors, weeks after the election results are certified?

Most people who submit their ballots on that first Tuesday in November simply assume that when they watch the election returns that evening, the question of who “won the presidency” will be a settled matter. That’s been the case in the modern era, and with the backdrop of that experience, it’s a reasonable presumption.

Nevertheless, normal expectations fit normal times. We have not been living in normal times since the presidential election of 2000, which featured a nuclear level controversy about the intentions of thousands of voters in Florida – the state on which the outcome of the election ultimately hinged.

The dispute was so contentious and litigious that it finally had to be adjudicated by the U.S. Supreme Court. We could conceivably be staring down the barrel of something similar in 2020.

Meet the vagaries and idiosyncrasies of the Electoral College system of U.S. elections.

The persons participating in this possible scenario, are known to students and historians of American presidential elections, as “faithless electors”. To understand the potential meaning of this, it’s important to review the components of the system.

Each political party organization selects via one form or another, members of their party to be assigned to the Electoral College. The criteria is generally the reputation and relationship of the person to the state level party leadership structure and to one extent or another – their relationship with the candidates themselves.  In this light, we note that one of the plaintiffs in a recent case dealing with faithless electors (Polly Baca), was a state legislator, a House member and a state co-chair of her party.

The ostensible understanding between the chosen elector and the party and its candidate, is that casting the ballot for that parties’ nominee, is a firm commitment.  Is there a mandate in the Constitution or elsewhere in federal law that binds an elector to their parties’ candidate? There is not. There are, however, a body of laws in 29 states that to one degree or another, hold electors strictly accountable to vote for the nominee of their party. On the contrary, 21 states have no such legislation.

The laws in the states that regulate the votes of electors, typically have provisions to invalidate the vote of an elector that contradicts the pledge they took to faithfully execute their role. Hence, those voters that break faith, are termed “faithless”. Depending on the terms of the state law, the party may attempt to remove and replace the elector and levy a fine on them for violating the agreement they made.

Ray vs. Blair (1952)

The constitutionality of these statutes were considered settled law for most of American history. The most recent ruling from the Supreme Court – Ray vs. Blair, from 1952, left a gaping hole of uncertainty with regard to the extent of the obligation of an individual elector.

While the court, in a 5-2 decision, ruled that states are within their rights to require a pledge from an elector, it did not definitively settle whether the state laws can enforce the pledge. Key to that ambiguity is this passage of the ruling:

However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, § 1, to vote as he may choose [emphasis added] in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional.

— U.S. Supreme Court, Ray v. Blair, 1952

One of the dissenters in that case, the late Supreme Court Justice, Robert H. Jackson wrote that Presidential electors, “although often personally eminent, independent, and respectable – officially became voluntary party lackeys and intellectual nonentities to whose memory we might justly paraphrase a tuneful satire: ‘They always voted at their Party’s call, and never thought of thinking for themselves at all.’”

The Constitutional Convention of 1787

In looking back to the debate from May through September, inside the Constitutional Convention of 1787, it was apparent that the majority of delegates preferred a top down system of electing a president , involving either members of the House of Representatives, or senators , or elected state lawmakers, instead of resulting from the popular vote. 

Among some of the participants in this contentious group of architects of our system of laws, there were a few that felt that having elites exclusively decide on who should be president, smacked not of the right principals of egalitarianism, but instead, of a revival of the aristocracy of England and oligarchy. 

When the question was first examined, such notable delegates as Elbridge Gerry (the alleged father of politically motivated mapping of congressional district boundaries), favored election of the president by governors; some calling for Congress to vote (Roger Sherman); others by members of the United State Senate (John Rutledge), with the proviso that, if no majority of Senators could agree on the re-election of the president for a second term, the deciding vote would then fall to the legislatures of the states.

Other delegates, mainly James Wilson and James Madison, were partial to direct democracy – the election of the president via the preference of eligible voters in each state. That even, is a gross oversimplification. Virtually none of the framers of the Constitution had much enthusiasm for democratic principals of government.

“We The People” is not quite the rhetorical pronouncement of universal participation in the process of elections it might seem on the face of it. While these men found the Monarchy reprehensible, they would never have conceived of the system of universal suffrage we (wrongly) take for granted, today. 

From the disputes and negotiations on the question, the compromise of the “College of Electors” evolved into the national charter.      

The “College of Electors”

The record tends to indicate that the framers of the Constitution had an expectation that participants in the College of Electors, would conduct a more intricate deliberative process than they are viewed to possess in the modern era.

Stephen M. Sheppard, Dean of St. Mary’s University of Law, writing in the Wisconsin Journal of Law, notes that Alexander Hamilton “described the electors as people of discernment, capable of investigating the qualities of the candidates and deliberating among themselves to determine the person best fit for office”.

This tends to suggest that electors were intended to have a certain degree of free agency – and that is precisely the argument at the basis of whether electors are legally bound to their pledges.

Occasionally, the 12th Amendment, is invoked in this argument, but the 12th Amendment, incorporated in response to the stalemate experienced in the election of 1800 between the eventual winner, Thomas Jefferson and Aaron Burr, only provided that electors limit their vote to one nominee. It did not in any other way, specifically bind them.

In that vacuum, the various state legislators began enacting laws, not only prescribing the process of selecting the representatives to the Electoral College, but defining the roles of electors, i.e. the extent, if any, of the autonomy of their role.

Proponents of full autonomy for individual electors, base their position on the expressed intentions of the framers and signers of the Constitution. This came into intense focus following an incident taking place in the 2016 during the convening of the Electoral College following the election.

A “Faithless Elector” Emerges – Michael Baca

Three Colorado electors, designated to represent Hillary Clinton, the winner of the popular vote in that state, deviated from standard practice, in casting their ballots for recent Ohio Governor John Kasich.  In response, the Colorado Secretary of State Wayne Williams, issued an order to remove Baca and nullify his vote.

In 2018, after a Federal Court dismissed without review, Baca’s suit requesting a preliminary injunction against Colorado, Baca then filed an appeal.

Baca and his co-plaintiffs, Polly Baca and Robert Nemanich, contended in their filing – and in the appeal that “Colorado’s binding presidential elector statute, Colo. Rev. Stat. § 1-4-304(5), violates Article II of the U.S. Constitution, the Twelfth Amendment, the First Amendment, and the Fourteenth Amendment’s Equal Protection Clause because they are “forced” to vote for the Clinton-Kaine ticket and will be removed from their position if they do not.” 

Earlier this month on August 20th, the 10th Circuit Court of Appeals, rendered a 2-1 decision (which you can review in detail, here) in favor of Michael Baca.

The majority justices on the panel in the Baca appeal stated in their ruling that “The words of the Constitution itself, imply the right to make a choice or voice an individual opinion….electors, once appointed, are free to vote as they choose.” The majority ruling also stated that, “The Constitution does not provide the power to interfere once voting begins [among the electors].” 

In her majority opinion, Judge Carolyn McHugh focused on the words used in 1787.

“The definitions of elector, vote and ballot have a common theme: They all imply the right to make a choice or voice an individual opinion. We therefore agree with Mr. Baca that the use of these terms supports a determination that the electors, once appointed, are free to vote as they choose. The text of the Constitution makes clear that the states do not have the constitutional authority to interfere with the presidential electors who exercise their constitutional right to vote for the president or vice president candidates of their choice.”

Colorado’s present Secretary of State Jena Griswold said the decision “takes power from Colorado voters and sets a dangerous precedent.”

Derek T. Muller, professor of Law at Pepperdine College – a subject matter expert on the electoral college, says of the 10th Circuit’s ruling:

“The breadth of this opinion — a suggestion that there’s a virtually unfettered choice — is what’s the most remarkable part of it. For decades, electors and states have had an uneasy kind of truce. Electors typically aren’t faithless, and states have wielded the threat of replacement. This opinion, however, collapses that truce. Electors are now instructed that they can vote for whomever they want, and replacement is not an option.” 

A different and contrary judicial ruling resulted from a case brought to the Washington State Supreme Court. The Constitution Center reports that, “an 8-1 majority said the issue of presidential elector deviation from instructions was settled against such voters by the decision in Ray v. Blair nearly seven decades ago.”

The majority in the Washington case declared that

“the Constitution confers broad authority on the states to dictate the manner and mode of appointing Presidential elector.” It added that this broad authority was reaffirmed in the Ray decision, which upheld an Alabama law that required a pledge of loyalty to the party’s nominee before a Presidential elector could even seek that office.”

Washington State’s high court summed up their finding, stating in their decision that, “the Constitution “gives to the state absolute authority in the manner of appointing electors. … The power of electors to vote comes from the state, and the elector has no personal right to that role.”

This is where the U.S. Supreme Court appears in the third and final act of the play. Los Angeles lawyer Jason Harrow, who filed an Amicus brief for the plaintiff in the Baca case, on behalf of elections reform organization, Equal Citizens, says of the Supreme Court, the next venue of the elector status battle, “We now have a split, and there’s no need to wait longer. We want a decision before the 2020 election, and the sooner the better.”

How might electors who are un-tethered to their party’s nominee, affect the outcome of the presidential election?

If past experience is predictive – more than likely, not at all. During the entire run of elections in America, less than 1 percent of electors, according to the Federal Register, have abandoned the nominee they were assigned to cast a ballot for.

Even so, the presidency of Donald Trump has taken a wrecking ball to just about every norm of Democracy imaginable, creating a cloud of uncertainty over the next election.

If one candidate or another, winds up with a large majority of contingent electoral votes, the odds of a number of electors bolting from their assigned candidate, are astronomically small, based on the risk vs. rewards equation. On the other hand, if the outcome hinged on one or two battleground states – even a state with just a small handful of electoral votes, (Maine?) – the prospects spike dramatically.

A ruling by the Supreme Court that affirms that of the 10th Circuit, would send a message to electors that they are free to contravene, some might say, subvert the results in any given state.

What could such an impulse on the part of an elector in a swing state translate to, in the political landscape of the 2020 presidential election? Further, and more to the point, which political party carries the most vulnerability from an elector that concludes they’ve been given a green light by the nation’s highest court to exercise their individual discretion?

To understand that, it’s valuable to look at the political parties themselves. By election time, the Democrats – fractured as they are at present, along moderates versus progressive lines, will have resolved their conflicts through the leveling effect of a convention and almost certainly you will see, to one extent or another, a ticket that political strategists describe as “balanced”.

Which party is most at risk from an elector who “goes rogue”?

There will be virtually no incentive for a pledged Democrat elector to fill out a ballot for Donald Trump. It’s  inconceivable, although theoretically not impossible.  It might depend on the ability of the Russian counter intelligence agency, the SVR, whisking away a Democrat elector, subjecting them to an intensive mind control program and sending them back to complete their mission – a sort of “Manchurian Elector” operation. OK, it’s fanciful and absurd, but it might make a plot for a suspenseful espionage novel. 

On the other side of the equation, we know that although Trump has an internal approval rating from Republicans just slightly north of 80 percent, there are members of the party that are not fully aligned with him, although some may have kept their concerns private.

The reality is, as we see a constant unraveling of his presidency along with other factors including the many legal storms threatening to gain hurricane strength, it’s far from unimaginable that an elector or a group of electors might decide that Trump is an existential threat to the long term viability, elect-ability and reputation of the GOP.

They might also look beyond their partisan affiliation and conclude that a lame duck term for Donald Trump could pose an unacceptable risk to the country, based on his conduct and perceptions of his deteriorating mental state. It is also possible that a number of Republican electors are actually of the “Never Trump” orientation or that events could push them into that category.

In regard to the risks of a surprise in December of 2020 during Electoral College balloting, the risk ratio for Trump’s campaign pegs 11 on the meter, with scarcely a blip for the Democratic nominee. This makes the participation of the Colorado Republican Committee, filing an amicus brief in favor of the plaintiff in Baca V. Colorado Department of State, all the more intriguing.

Might the party see more upside in their own electors having the ability to save the party from four more years of destruction of their brand from Trump, without the downside of leaving their fingerprints at the crime scene?

Trump himself, has not tweeted on the “faithless electors” issue yet. Whether he will or not, is hard to predict. What does not require consulting with a psychic, is the certainty that if an electoral vote or several were to flip the election to the Democrat – Trump will inevitably invoke a conspiracy theory and tweet that it was a “rigged election”.

Of course, in any event, including merely a wholesale rejection of his presidency by voters themselves, Trump will tell his supporters that the election was stolen from him. That’s pretty much baked into the cake.    

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