To bind or not to bind? The Supreme Court’s ‘faithless elector’ decision

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Supreme Court justices apparently do not fully understand the Electoral College. How disappointing. If we’re lucky, no national crisis will emerge, but the justices’ opinion in Chiafalo et al. v. Washington leaves this possibility open. The court’s holding that states can bind their electors could disrupt election results in many unanticipated ways.

If worse came to worst, it could even place the losing presidential candidate in the White House. Why? It helps to start at the beginning.

Most Americans go to the polls on Election Day doubtless believing that we are casting a ballot for President of the United States. It certainly seems that way. States typically put the name of only the presidential candidates on the ballot. The electors’ names are nowhere to be seen.

In reality, voters aren’t voting for president. Instead they are voting in a statewide election for presidential electors, just as they might vote for governor. Justice Elena Kagan, who wrote the majority opinion in Chiafalo, indicates that the will of voters is accurately reflected only when electors vote for the “correct” presidential candidate. In reality, the will of voters is accurately reflected when the slate of electors that won the state’s election goes on to represent that state in the Electoral College.

This is true even if one of those electors breaks a pledge to vote for his party’s presidential candidate. 

Who can forget candidate George H.W. Bush’s pledge to the nation: “Read my lips: No new taxes!” As president, he later signed a bill authorizing new taxes. His failure to keep his pledge didn’t invalidate his election. The will of the people put him in office. His broken promise was a moral issue, not a legal one.

Kagan’s opinion seems to miss this point. Instead, she writes that an elector who votes differently than expected “revers[es] the vote of millions of its citizens.” By her logic, the will of the people was reflected in the Bush administration up until the day that he broke his promise. Thereafter, he was invalidly holding office. 

Voters sometimes place their trust in the wrong person. That doesn’t make elections invalid.

It’s a nuance that the justices should understand, but perhaps some will argue that it doesn’t matter. The system was stable before this ruling, and it will remain stable afterwards. Most electors are faithful to their pledges. Because of the manner in which electors are chosen, they are typically party loyalists who want to support the candidate whom they’ve been asked to support.

Indeed, no faithless elector has ever changed the outcome of a presidential election.

Given this history, the Supreme Court decision seems harmless. But bad facts, as they say, make bad law. The fact pattern in 2016 isn’t the only possible fact pattern. Other, emergency scenarios could arise.

For example, what if a winning presidential candidate were to suffer a debilitating health crisis after Election Day, but before the meetings of the Electoral College? The candidate is in the ICU and not expected to survive. The state laws upheld in the Chiafalo case will force many presidential electors to vote for that candidate anyway.

One glance at the election of 1872 reveals that this is a bad idea.

Horace Greeley was soundly trumped by Ulysses S. Grant that year. But for that outcome, the events that followed could have resulted in chaos. Greeley died after Election Day, but before the meetings of the electors. Electors weren’t sure what to do, but at least some of them felt that it was important to cast their ballots for Greeley, despite his passing, since they’d promised to do so.

The move backfired.

When Congress assembled to count the electoral votes several weeks later, one representative objected that the votes for Greeley could not be counted because Greeley “was dead at the time said electors assembled to cast their votes and was not ‘a person’ within the meaning of the Constitution.”

In the end, the electoral votes were tossed out. The decision didn’t prompt a crisis because Greeley had lost the election. But what if a winning presidential candidate were to die? State laws binding presidential electors could throw the results of the election into doubt. 

To be fair, the court recognized the difficulty of a deceased candidate — in a footnote — but did not resolve the issue. It’s an issue worth considering, however, because the problem can take so many forms. What if a candidate were to become ineligible for the presidency because of impeachment and removal from office? What if it were discovered that a candidate, believed to be a U.S. citizen, was born in a different country? 

These and other events could leave Congress in an odd position when it comes time to count the votes: If 270 or more electors were bound to cast their ballots for an ineligible candidate, then those votes could be thrown out. The Constitution’s secondary election procedure — a House contingent election — would be triggered because no candidate obtained a majority in the Electoral College. Yet by the express provisions of the Constitution, the only candidate in that secondary election would be the losing presidential candidate.

Thus, while Chiafalo leaves states free to bind their electors, states instead should consider a different approach: Make the process of elector selection more transparent. Even if electors are bound as a general matter, outline certain types of emergencies in which their independence is welcomed.

This fine balance between simple democracy and the possibility of occasional, wise intervention was praised by none other than the Father of the Constitution, James Madison.

Madison viewed the electors through a dual lens: He was happy that electors had been voting in accordance with state popular vote outcomes, noting approvingly in 1826 that electors were “generally the mere mouths of their Constituents.”

On the other hand, he noted, “they may be intentionally left sometimes to their own judgment … they will be able, when ascertaining, which may not be till a late hour, that the first choice of their constituents is utterly hopeless, to substitute in the electoral vote the name known to be their second choice.”

Madison was speaking against a constitutional amendment to automate electoral votes. He’d surely be surprised to see that, just 200 years later, the Supreme Court would effectively accomplish this amendment by judicial fiat instead.

Tara Ross is a retired lawyer and the author of several books about the Electoral College, including “Why We Need the Electoral College.” Follow her on Twitter @TaraRoss.

Tags 2016 presidential election Electoral College Elena Kagan Faithless elector US Supreme Court

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