“...although generally they are the mere mouths of their constituents, [the Electors] may be intentionally left sometimes to their own judgment, guided by further information that may be acquired by them ... 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 the second choice.”
James Madison, 1823
On Friday SCOTUS agreed to hear the case of Washington’s four “faithless electors”, who in 2016, despite having signed pledges to vote for Hillary Clinton on behalf of their constituency, voted for someone else. Three voted for former Secretary of State (under George W. Bush) Colin Powell, and one voted for Faith Spotted Eagle, an activist against the Keystone XL Pipeline. In accordance with Washington law, they were fined $1000, the first such fines levied in US history, despite a total of 167 faithless electors over the past two centuries. Their votes, however, were counted. The faithless electors challenged their fines, but the Washington Supreme Court ruled 8-1 that the fines were legal. Chief Justice Barbara Madsen wrote:
“The power of electors to vote comes from the State, and the elector has no personal right to that vote”
The Washington State Legislature went on to enact a law invalidating the votes of faithless electors and replacing them with an alternate elector. Similar laws exist in 28 states, and in 2016, 3 of 10 faithless electors nationwide had their votes nullified.
In Colorado, however, faithless elector Michael Baca won his case with the US Court of Appeals for the 10th Circuit, which ruled that the Constitution
“does not provide the states the power to interfere once voting begins, to remove an elector, to direct other electors to disregard the elector’s vote or to appoint a new elector to cast a replacement vote.”
This ruling persuaded three of the Washington faithless electors to take their case to SCOTUS.
Baca of Colorado together with Bret Chiafalo of Washington regard themselves as “Hamilton Electors”, referring to the Federalist Paper No 68 arguing in favor of the Electoral College, authored by Publius, widely believed in this case to be Alexander Hamilton. It was argued that the with the EC
“the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”
The transient existence of the EC was thought to be the best way to prevent
"foreign powers to gain an improper ascendant in our councils."
Baca and Chiafalo, both Democrats, hoped, during the time between the November 8, 2016 popular vote and the December 19 EC vote, to persuade 135 Republicans and 135 Democrats to back a more moderate Republican candidate or at least to convince 35 Republicans to do so, robbing Trump of his 270 electoral votes and throwing the election to the House, where they hoped the House would choose a more moderate candidate (hence, I presume, their votes for Colin Powell). They reasoned that drastic times required drastic measures. In the end, only two of the seven successful faithless electors were pledged to Trump and five were pledged to Clinton, far short of what was needed to affect the outcome of the election. As usual, counting on Republicans to do something sensible for the good of the country was a losing proposition. Even if they had been successful, court challenges would have ensued, with the President likely determined by a SCOTUS decision.
Washington’s kick-ass Attorney General, Bob Ferguson, about whom I have written previously, will be defending the Washington faithless elector law. Ferguson successfully fought the Muslim travel ban and something like 40-50 other lawsuits against the Trump administration. Ferguson wrote:
“Holding that electors have a constitutional right to vote however they wish would mean that only 538 Americans — members of the Electoral College — have a say in who should be President; everything else is simply advisory.”
Hopefully SCOTUS will agree that faithless electors disenfranchise voters and deprive them of their representation in government. But if they do not (the Founders after all rejected a popular vote), I am wondering if the ensuing oligarchy would be enough to rouse widespread opposition to the EC. Even Republicans want their votes to count. I am fairly certain such a decision would lead to considerably more scrutiny and competition to be an elector. And probably to increased efforts to buy electors; 270 bribes is well within the financial resources of some political players (in both parties).
As readers here are familiar, there are several strategies to ameliorating the dysfunction of the EC. A Constitutional amendment is the best, but also probably the hardest to achieve. Under the National Popular Vote Compact, highlighted in the illustration, states agree to cast their electoral votes for the winner of the popular vote once states with a total of 270 electors sign onto the Compact. A conceptually simple, if not practically simple, method to make the EC more representative would be to eliminate the winner-take-all policy used by 48 states in favor of representative apportionment of electoral votes. Could this be enacted at the federal level, or would that be unconstitutional? Would either of these schemes or others work if electors are free to ignore the wishes of their constituents and states? Would the winner-take-all system be immediately made irrelevant if states cannot direct electors how to vote? These are things to think about and prepare for while we hope that Bob Ferguson can prevent an oligarchy of electors.