DC Deciphered

It’s possible you’re reading this after the electors have already cast their votes on December 19, but I think the question here will still be interesting & hopefully you‘ll think so too:  In the case of a “faithless elector,” can the law prevent them from going rogue?  Many states actually do have laws about this — they require their electors to vote for the candidate that wins the most votes in the state.  But are those laws constitutional??

For the tl;dr (“too long, didn’t read”) crowd:  the answer is no one knows for sure, because it hasn’t really been tested in court.  Legal scholars generally say the laws are not constitutional, but most states have these laws anyway.

Are the Rogue Electors Even Out There?

The idea of the “faithless elector” has become all the rage lately (even SNL is getting in on it with this spoof), the last best hope for many who are terrified about Trump’s impending presidency. In the last 2 weeks or so, the pleas have increased exponentially – I’ve seen friends/acquaintances on Facebook, celebrities, political opinion writers, and even legal experts & ethics experts all calling for the electoral college to reject Donald Trump. The intensity appears to have grown in part simply as a result of the vote getting closer.  But I think much of the increased alarm stems from the 2 items I mentioned in my “Piss or Get Off the Pot” post: (1) the recent revelations about the truly unprecedented degree of interference by Russia (and Putin personally) in the election & Trump’s complete refusal to acknowledge that it happened, all while ignoring the briefings from our intelligence agencies and choosing to insult their work instead; and (2) the unprecedented (again!) scope of Trump’s business conflicts & the fact that people have finally caught on that he intends to do nothing to remedy the situation but will continue to flaunt the impropriety instead.

So, are these pleas to the electors just pie in the sky dreaming, or could such a rebellion really have a shot? In order to deprive Trump of the votes he needs to be officially elected as President, 37 Trump electors would have to refuse to vote for him.  As far as anyone has been able to report, there are nowhere close to 37 Trump electors who are willing to do that.  So far, there have only been two anti-Trump Republican electors confirmed.  One of those two resigned, rather than vote against him, so he was replaced, presumably by a willing Trump voter.  The other one remains and does plan to cast his vote against Trump. (Oddly enough, they’re both from Texas).  So that leaves only one anti-Trump Republican elector.

But wait!  There are also Hillary Clinton electors who are planning to rebel.  And it’s not because they don’t like Hillary.  These electors are calling themselves the Hamilton Electors based on the idea that Alexander Hamilton wanted electors to deliberate and make sure the President they were selecting was duly qualified.  These electors are hoping that if they agree to give up their Hillary votes to vote for a non-Trump Republican instead, they can convince enough Trump electors to go along with them in order to deprive Trump of the required votes.  As noted above, however, almost no Trump electors have shown willingness to change their vote.

Can the Law Stop Rogue Electors?

Now to explore the question I started with, let’s imagine the Hamilton Electors were having success on their quest.  What if they had managed to round up 40 or so electors who were willing to vote for Jon Kasich instead?  Well, approximately 30 states* have laws that wouldn’t allow them to do so!  In those states, the law binds the electors, requiring them to vote for the candidate who gets the most votes in their state.

If your gut is anything like my gut, your gut instinct says that sounds wrong. That would seem to defeat the whole point of the electoral college. And the 12th Amendment, which lays out the duties of the electors, states:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President.

You wouldn’t need electors to show up for a vote and fill in a ballot if they were always simply going to vote for the guy (yup, still all guys) their state chose. Common sense tells us that.  But what does the case law say about it?

Actually, not much.**  Which is probably not surprising for an issue that has arisen just about never, as a practical matter.  The case that comes closest to addressing the issue is a 1952 Supreme Court case called Ray v. Blair.  In this case, the question was whether state political parties could require electors to pledge to vote for the party’s eventual nominee.  The court ruled that it was permissible for the parties to require this pledge, however, the Court specifically declined to answer the question of whether the parties were allowed to enforce the pledge.  In other words, the Court did not say whether the parties had the right to impose a penalty if an elector broke the pledge.  Several legal scholars who have written about this believe it is a significant distinction, because it binds the electors morally – they made a promise they’ll generally feel obligated to keep — but still leaves room for them to stray in exceptional cases since there would be no legal punishment. ***

However, right now, the faithless elector laws in a number of states do impose penalties for violations. Additionally, some of the states try to get around the problem by deeming a faithless vote to be an automatic resignation by the elector, allowing the state to appoint a replacement.  Because these laws have so rarely come into play, they’ve also rarely (if ever) been challenged.  This has left 2016’s most determined rebel electors battling it out in court, trying to convince a judge that these state laws violate their constitutional rights.

Happening Now in a Courtroom Near-ish You

The most visible of these battles just took place in Colorado.  A group of Hillary Clinton electors, part of the “Hamilton Electors”, filed suit to challenge Colorado’s faithless elector law.  They lost the suit in Denver District Court, with the judge upholding the law and ruling that the electors can be replaced if they refuse to comply.  The electors then appealed to the State Supreme Court.  The court denied their appeal but in a footnote (FN 3) seemed to imply that the Plaintiffs might have had a winning argument in the text of the Twelfth Amendment, if only they had made such an argument (Plaintiffs made numerous other arguments, but oddly never one based on the actual text of the Constitution).  Additionally, well known legal scholar (and Hillary supporter) Laurence Tribe believes that though the court allowed the state law to stand, it indicated in another footnote (FN 4) that “any effort to remove or punish electors for the way they vote is unconstitutional.” This would be consistent with the common analyses of Ray v. Blair, discussed above.  With this little glimmer of hope, the Hamilton electors in Colorado seem prepared to keep fighting.

To sum it up, most legal scholars agree, based on the very limited case law and their own readings of the Constitution, that state laws binding electors are unconstitutional.  However, these laws still stand because they’ve rarely, if ever, been challenged.  Now, the challenges are being raised in the midst of one the most contentious, unpredictable, topsy-turvy elections we’ve ever seen.  This means that judges deciding these cases have to weigh public policy considerations very heavily – e.g., how will their decision affect the country, what kind of turmoil could they be setting off, etc.  (For example, the lower court judge in the Colorado case noted that, “the last-minute nature of this action, coupled with the potentially stifling effects it may have on our country . . . tip[ped] the scales in favor of the defendants.”)  So I would be interested to see this movement of the electors continue once the current chaos has subsided, so that the next time we have a regular, old, boring election, they will already have a plan in place to challenge these laws well in advance of the day they meet to vote (as soon as general election day is over) and to do so in many different states.  That way we may get a better indication of where the courts truly stand on this question.

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*For some reason, I can’t find a consistent number or list of states for this.  I’ve seen anywhere from 27 – 30 reported.

**Legal scholars also look to the text of the Constitution itself to try to decipher how it should be applied.  This is particularly relevant here, since there is so little case law to look to.  Two helpful analyses are here and here. And for those with a hardcore interest in the topic, here’s a much more in depth analysis which looks at the founding of the Electoral College, the history of political parties, etc. and delves deeply into the language used in the pertinent sections of the Constitution.

***There have been a couple of other cases that legal scholars have looked to in order to figure out how the language of the 12^th Amendment should be interpreted, but Ray v. Blair is the most significant & most relevant case.