Posted on 01/17/2020 7:30:21 PM PST by PerConPat
The Supreme Court will decide whether Electoral College voters are required to support presidential candidate who wins state.
After lower courts split on the question, the U.S. Supreme Court decided today it will hear a case to decide whether presidential electors are bound to support the popular vote winner in their states or can opt for someone else.
States want the ability to punish or replace these so-called "faithless" electors...
(Excerpt) Read more at patch.com ...
That’s not what the case is about.
The states are arguing that the electors are bound to vote based on the state’s laws....whatever they may be. In other words, the electors have to vote how the state wants them to vote and not vote based on their own free will.
So the state could pass a law that says its electors are bound to the winner of the national vote. It would then be illegal for an elector to instead vote for the candidate that won their state.
Concur...I do not take it lightly that an "elector" has the right to vote their conscience. But, for me, this right is tempered by my belief in their responsibility to their state. They may, of course, determine that it is in the best interest of their state to disregard the wishes of the party that empowered them. However, a well-intentioned disregard for the will of the majority is tricky business in the absence of extreme circumstances- eg. a Hitler. While possibly necessary in extreme circumstances, I contend that the previous example was not the reason the Founders instituted the Electoral College. An individual's right to vote his/her conscience is without question something not to be trifled with in these situations. But I believe the Founders were entirely concerned with protecting the rights of the "small" states.
It is not always possible to avoid political chaos, but a "faithful" Electoral College is probably the best approach.
Good question...States that use this system could certainly run the risk of inheriting the wind.
I understand all of your comments and in great part agree with them. There is , IMO, a basic question with respect to your comment excerpted above. Would a "Faithful" or an "Unfaithful" Electoral College be more likely to prevent the situation you describe? For me, this is a serious consideration. History is full of examples of factions taking advantage of perfectly reasonable freedoms to create chaos.
The Constitution is very specific on how an elector is chosen:
Article IISection 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
And the Twelfth Amendment lays out how the Electors cast their vote:
The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;
But the Constitution is silent on who an elector must vote fo.
So the Interstate Compact could still go fowrard.
The message here is to nominate your electors wisely.
If the Constitution is silent on who an elector must vote for, then why does the 12th amendment say: "...transmit sealed to the seat of the government of the United States, directed to the President of the Senate... The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;"
If the Constitution expected the states to mandate how their Electoral College votes were to be cast, then why "seal" them and wait for the votes to "then be counted " in front of a joint session of Congress? Wouldn't the results be known immediately or shortly after the election?
The Constitution was written generally in expectation that states would choose several methods of selecting Electors across all the states, not just the current situation where practically all the states have winner-take-all and competing partisan slates of Electors.
In fact, I believe the Framers expected states to select prominent citizens to be their Electors, and those citizens would vote their conscience for President and Vice-President. We don't have today; Electors are not a single body of chosen wise people, they are vetted partisan slates expected to vote for their party's nominee.
But regardless of the method, the Constitution must be agnostic to the method (which can change over time) and expect the Electors to vote as they choose.
-PJ
I begin with the expectation that "faithful" is only relevant to the method of choosing Electors in the first place. It is possible for states to choose methods of selecting Electors where there is no prior obligation or expectation how they will vote, which makes the question of "faithless Electors" moot.
I admit that we are currently not using one of those methods. I question whether it is wise for the Supreme Court to make a ruling on something that is potentially transient, unlike ruling on something that is permanently fixed in the Constitution, like the meaning of "natural born citizen," or limits on free speech, or how wide is the right to keep and bear arms.
To your point, I would ask if which of a faithful or faithless Electoral College is expected to be the norm? In our history, the faithless Elector has been rogue, one or two in a controversial election, none in most. I think that the current hysteria over faithless Electors is more of a psyops than an expectation, a media putsch to plant the thought that a faithless Elector is a hero and not an aberration. It is a call for members of the Electoral College to de facto impeach and convict the President as a last hope.
It is hard for me to say whether faithful or faithless or neither Electors would damage the standing of states. I still believe that the state mandating how a citizen casts his vote is the greater danger.
-PJ
Thanks for your comments and your clarity. I will watch and wait for further developments in this matter. It might have been better had the SCOTUS dodged this one. Only time will tell.
Good discussions but I think to me the solution is clear.
First I start with the constitution and I am an originalist. As Yo-Yo pointed out in post 41, there are 2 elements to this. First is Article II Section 1 where it designates the number of electors for each state. This affirms the electoral college rather than the popular vote. To change that you need to change the constitution.
The 12th Amendment (1804) notes the formality of the electors reporting to Congress and I agree is silent on how they are appointed and who they must vote for. This appears murky however, the contextual basis for the this amendment was to remedy the problems with the 1800 election - and concerns clarification about voting for president and vice president. While it mentions electors (IMO as a tool - I think it was logistics of communication as it was known then) there are no special rights for them. Consider the timeframe where only persons of privilege could vote, to endow electors with privilege to overrule the votes of the people who voted for president seems unconstitutional based on subsequent amendments.
As an originalist, I am totally comfortable with a ruling that negates electors and substitutes electoral votes and do not consider it a rewrite of the constitution. It affirms the states powers in the count per Article II Section 1. It does not practically affect the 12th amendment.
What is the purpose of having electors rather than electoral votes? Electors are not how people vote when they vote for president.(What percent of people know the elector they are voting for 5 minutes after they vote - even if the name of the elector is noted on the ballot? Almost none.)
As I pointed out, the possibility of mischief in the electoral count is huge. No one has effectively countered my risk to the system by the examples that I gave which I will reiterate.
Consider a 270-268 outcome but 2 electors are either (or both) threatened or given large sums of money - say $25 million to change their vote. What is the rationale for allowing this possibility? It is insane. While the risk exists on both sides (which is equally wrong), I contend that the risk is greater for the Rs. Consider 2020. Assume Trump wins 270-268 and the D wins the popular vote (as voter fraud is rampant). What do you think will happen if Soros pays off 2 electors in some secret bank account and the votes are changed? What would the media do? You know the spin that would be created - impeached president, popular vote so the end result is fair. Would there be investigations in the new administration on these electors - not a chance? Would we violently recreate- I doubt it - perhaps some but it would be temporary and further tempered by MSM and worse by RINO squishes.
I ask the question - why allow the possibility for this to happen?
First quibble, the Constitution says nothing about how anybody "must vote." It only says that the states have the power to choose the method of selecting Electors.
Additionally, the Constitution lays out six specific cases where citizens are given the power to vote in the federal government: 1) for Representatives to the House of Representatives, 2) as Representatives in the House of Representatives to vote on bills to be come law, 3) as Senators in the Senate to vote on bills to be come law, 4) amended in 1913 in the 17th amendment to vote for Senators, 5) as jurors in trials by jury to vote for conviction or acquittal in a court of law, and 6) as Electors in the Electoral College. In NO case does the Constitution say how a citizen is to vote, or that any other body has the power to decree how the citizen must vote, in any of these cases where the citizen has the power to vote.
This appears murky however, the contextual basis for the this amendment was to remedy the problems with the 1800 election... While it mentions electors (IMO as a tool - I think it was logistics of communication as it was known then) there are no special rights for them.
Second quibble, in the Constitution, nobody is a "tool." The 9th and 10th amendments make clear that rights not explicitly delegated to the federal government are retained by the states, or the people. It is the federal government that is the "tool" of the states and the people, not the other way around. The Electors are not a "tool" of the states or the federal government.
Third quibble, there are "special rights" for Electors to the Electoral College, laid out in the 12th amendment. 1) they meet in their respective states and not as a single body, 2) they transmit sealed ballots to the seat of the government of the United States, and 3) those sealed ballots are opened for the first time in the presence of the Senate and House of Representatives for counting. While our votes are secret, too, they are counted locally and their reporting is controlled by the ruling state party; they are not transmitted to Congress and opened for the first time in a joint session of the House and Senate.
As an originalist, I am totally comfortable with a ruling that negates electors and substitutes electoral votes and do not consider it a rewrite of the constitution.
Fourth quibble, how do you reconcile that with the text of the 12th amendment that says that Electoral College votes are sealed and opened for the first time in a joint session of Congress? At what point does the state get to "negate electors and substitute electoral votes" when these votes are not known by the states until they are opened for the first time in a joint session of Congress? How is negating these votes NOT a rewrite of the 12th amendment?
It affirms the states powers in the count per Article II Section 1.
You misunderstand the state powers, as I called out at the top of this post.
What is the purpose of having electors rather than electoral votes? Electors are not how people vote when they vote for president.
The fifth quibble, as I pointed out elsewhere, the people don't vote for the President. The states choose the method for selecting Electors. It is true that the current method is for people to vote for slates of electors, but the Constitution doesn't say that it has to be this way, or that once a method is chosen that it cannot be changed.
What would you say if your state chose to Constitutionally change the method of choosing Electors from popular vote within the state to the legislature choosing by themselves? In that case, the people still vote indirectly; they vote for their state assembly and senate who in turn select electors who choose the President, or they vote directly for electors who choose the President. In either case the people do not vote for the President, regardless of what they think. However, if the state legislatures chose to take back the power to choose Electors, would you argue that it was unconstitutional to do so?
Now, if the state did choose to take back the power to choose Electors for themselves, can there even BE a "faithless Elector?" What would a "faithless Elector" look like if the legislatures selected the Electors themselves? There is no "popular vote of the people" in this case to break faith with, only the will of the state legislature that selected them.
I ask the question - why allow the possibility for this to happen?
Because the situation is transient. We only have the concept of a "faithless Elector" because of the method the states have chosen today. If the government is to last another 230 years, do you think nothing will change between now and then regarding how states select the method for choosing Electors?
-PJ
That seems to be a non sequitur to me.But I am wary of attempting logic when it comes to the law.
My guess is that the use of the word “sealing” has to do with protecting against fraud in the transmission of the electoral vote being transmitted to Congress rather than in protecting the elector’s right to vote his conscience.
From the National Archives ....
“Choosing each State’s electors is a two-part process. First, the political parties in each State choose slates of potential electors sometime before the general election. Second, during the general election, the voters in each State select their State’s electors by casting their ballots.”
....
“During the general election your vote helps determine your State’s electors. When you vote for a Presidential candidate, you aren’t actually voting for President. You are telling your State which candidate you want your State to vote for at the meeting of electors. The States use [the popular vote] to appoint their electors. The winning candidate’s State political party selects the individuals who will be electors.”
....
There is no Constitutional provision or Federal law that requires electors to vote according to the results of the popular vote in their States. Some States, however, require electors to cast their votes according to the popular vote. These pledges fall into two categories—electors bound by State law and those bound by pledges to political parties.
The U.S. Supreme Court has held that the Constitution does not require that electors be completely free to act as they choose and therefore, political parties may extract pledges from electors to vote for the parties’ nominees. Some State laws provide that so-called “faithless electors” may be subject to fines or may be disqualified for casting an invalid vote and be replaced by a substitute elector. The Supreme Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution. No elector has ever been prosecuted for failing to vote as pledged. However, several electors were disqualified and replaced in 2016 for failing to vote as pledged.
It is rare for electors to disregard the popular vote by casting their electoral vote for someone other than their party’s candidate. Electors generally hold a leadership position in their party or were chosen to recognize years of loyal service to the party. Throughout our history as a nation, more than 99 percent of electors have voted as pledged.”
From Federalist Paper #68 dealing with the election of the President: “[T]he Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice.”
The pair of cases before the Supreme Court now is to decide whether Colorado and Washington state laws may require presidential electors to vote for the presidential candidate that won the statewide vote.
Again, recall the National Archives states:
“The Supreme Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution. No elector has ever been prosecuted for failing to vote as pledged. However, several electors were disqualified and replaced in 2016 for failing to vote as pledged.”
This will be an interesting case, as it might be more about State rights and the rights of the voters to have their vote count through the elector, than it is about the right of elector to vote his conscience, in part because of how the elector “got on the ballot” in the first place - via making a pledge to the party. What the SC holds here will be studied to see if one can guess how it might rule when the next case on the electoral college - state compacts - comes before it.
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