Already One Rogue Elector; But Many More Are Suddenly Possible

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Electoral college revolt? Unprecedented Situation Raises Odds of Election Being Decided by Electors or House

Since at least one elector has already publicly announced that he will not vote for the candidate he is pledged to, the door is open wide for other rogue electors – sometimes called “faithless electors” – to likewise not only break their pledges, but perhaps for the first time in history to actually deny the election to the candidate with the most electoral votes.

UPDATED with more information on the electoral college “revolt”

Robert Satiacum, an elector in Washington State pledged to Hillary Clinton, says he definitely will not cast his electoral vote in the Electoral College for her if she wins his state’s popular vote; a win which appears to be virtually certain given current polling.

Bret Chiafalo, another Democratic Washington elector, says that he is considering joining Robert. Some Republican electors have also expressed reluctance if not uncertainty about voting for Donald Trump in the Electoral College; a growing possibility given some of the very recent revelations about him.

Even a few so-called “faithless electors” could change the outcome of the election by throwing their votes to the other candidate, or by pushing the race into the House of Representatives.

It appears that the law cannot stop this from happening, says public interest law professor John Banzhaf, whose studies of the Electoral College have become generally accepted and are now widely quoted.

Washington law [RCW 29A.56.340] provides that any “elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars.” But that tiny penalty is unlikely to deter any elector determined to make a point, and Satiacum has said that the penalty, even if it could be imposed, will not deter him.

Moreover, a federal judge recently held unconstitutional Virginia’s statute that provided penalties for delegates to party conventions who do not follow the results of the presidential primary.
Concern about faithless elector is not the only problem with the Electoral College.

Another is the very real chance of a “misfire” when the electoral vote winner is different from the winner of the popular vote. This has already happened three times in our history, and could well happen any time an election is close, notes Banzhaf.

Another concern is that voters living in different states have widely disparate voting powers.

Hypothetically, and given a random distribution of Democrats and Republicans, individual residents in California have a much higher chance of affecting the outcome of the election than voters in many other states.

But, since California almost always votes Democratic, there is little chance that any voters in the state could affect the outcome, especially compared to voters in populous swing states like Florida.

This is far from the “one man, one vote” aspiration repeatedly articulated by the courts, argues Banzhaf.

However, there are also a number of perceived problems with any of the alternative proposals to replace the Electoral College, including a direct election of the president, argues Banzhaf.

Under a direct election, it is feared that candidates would spend most of their time and resources in states with large populations and large numbers of electoral votes such as California, a state in which the cost to reach each voter is less than in many other more sparsely settled state.

Some political scientists also argue that a direct election would reduce the influence of minorities, especially African Americans, and result in undo influence by city dwellers.

No system of presidential election – Electoral College, direct election, voting by district, etc. – is perfect, argues Banzhaf, whose voting calculations almost produced a constitutional change years ago.

Electoral College

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Some very unusual circumstances make this somewhat more likely than in the past, notes public interest law professor John Banzhaf, whose Electoral College studies are widely accepted.

In a close election, only a few electors who do not cast their electoral votes as they had pledged can change the outcome of the election, either by putting the candidate with a not quite enough electoral votes over the top, or perhaps even by throwing the presidential election into the House of Representatives.

Although there have been more than 150 instances in the past where electors changed their votes, in none has the outcome of the presidential election been fundamentally altered.

Many states have laws purporting to require electors to cast their electoral votes for the candidate to whom they are pledged, and/or to punish those who don’t. But these laws are of doubtful constitutionality, and courts may well choose not to enforce them.

For example, a federal judge recently held unconstitutional Virginia’s statute that provided criminal penalties for delegates to party conventions who do not follow the results of the presidential preference primary, saying that the statute “exceeds the powers retained by the Commonwealth of Virginia under the Constitution of the United States and cannot be enforced.”

In the very unusual if not unprecedented circumstances surrounding this election, rogue electors are more likely than in the past. Thus the following circumstances are at the very least possible, although the likelihood of any one or more occurring probably remains small.

Electors pledged to Donald Trump might be persuaded to switch their electoral votes by some recent events which occurred long after the electors agreed to stand for office. For example, the revelations about his so-called “locker room” statements, Trump’s alleged 2006 affair outside his marriage, etc., might persuade some female electors to change their minds.

Similarly, the various “October surprises” Hillary Clinton is now facing – including those from recently leaked emails, or even the FBI’s re-opening of inquiries – could be sufficiently persuasive.

Another – albeit a much less likely scenario – would be for an indictment supported by apparently overwhelming evidence to come down between her apparently winning on Election Day, and the day of her inauguration. In such a case, the Democratic National Committee may conclude that she cannot effectively govern as president, and that she must be stopped before she could be inaugurated and issue a pardon to herself.

Thus they might agree upon a consensus Democratic candidate – e.g., Joe Biden – and try to persuade all Democratic electors to vote for him instead of Clinton.

If enough electors did so, the next president might be someone who nobody voted for.

If many but not all of the Democratic electors agree to switch their votes to a compromise Democratic candidate, no person might have the required number of electoral votes. In such a case, the House would determine the next president, who would likely be Trump.

No one, of course, can predict the future, but the events surrounding this election have been so unpredictable from the beginning that no possibilities can be safety ignored, argues Banzhaf.

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About the Author

JOHN F. BANZHAF
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D. Professor of Public Interest Law George Washington University Law School, FAMRI Dr. William Cahan Distinguished Professor, Fellow, World Technology Network, Founder, Action on Smoking and Health (ASH) 2000 H Street, NW, Wash, DC 20052, USA (202) 994-7229 // (703) 527-8418 http://banzhaf.net/ jbanzhaf@law.gwu.edu

5 Comments on "Already One Rogue Elector; But Many More Are Suddenly Possible"

  1. Let’s all pray that we get a president rather than a dictator.

  2. The problem is that electors should not have to be forced to go by their what their state chooses.
    If the electoral system is constitutionally a federal matter, it shouldn’t be influenced by state politics.

  3. Steve Westerberg | Nov 7, 2016, 10:44 pm at 10:44 pm |

    NO

  4. 1) That if the race ends with a very close victory, there is no guarantee (unlike the assumption in the media) that the election would be over and it would not end up in the House, or
    2) That if the race ends with no one getting a majority, there is no guarantee (unlike the assumption in the media) that the 3 persons ‘winning’ EV’s on Election Day would be the 3 candidates from whom the House would choose the President.

    Let us assume that the election finishes very close, say 271-267 EV’s (or that McMullen wins UT and prevents anyone from getting a majority of EV’s; looking unlikely at this point). Most of the writing and reporting in the media assumes that in this case, the election would be effectively over (or that if McMullen wins, that the House will choose between Clinton, Trump and McMullen). But there’s 6 weeks between the election and 19 December, when by law the various electors meet in their respective State capitals to cast their EV’s. In that time, an AWFUL LOT can happen. Remember that if no candidate receives a majority, it’s immaterial how many EV’s a candidate will have, as long as they are in the top 3 (per the Constitution). So let’s game out an example. Say, Trump wins a very close EV election (or no one wins a majority). Trump’s electors (which, from what I’ve read, were not heavily vetted by the campaign) are subject to heavy pressure (and in some cases, it may not take much pressure at all) to cast their EV for Jeb Bush – say, 20. Now, no one has a majority and it’s Trump, Clinton, and Bush from which the House will choose (McMullen would be squeezed out in this scenario if he would have won UT). Hmmmmm, for whom do YOU think the House would vote?

    Let’s add another complication. After the election, Wikileaks drops another dump on Clinton. This one is so bad that even some D’s will no longer stand by her, whether she has a narrow majority of EV’s or no one has a majority. The party (and the electors) start considering their options – Sanders, Warren, Biden. To whom should some D electors vote? And how many? After all, they need to outvote the R electors voting for Bush (only the top 3 get considered by the House). If the D’s can put their preference as the 3rd choice, and it’s someone perceived as a moderate (Biden or someone else – unfortunately for the D’s, their bench is thin, a consequence of the chokehold ClintonWorld and ObamaNation have had on the Party), that choice might well win if the other choices are Clinton and Trump. You can see the complications……

    Add to this the fact that 29 States (and DC) have laws concerning faithless electors (of questionable enforceability – maybe the relatively minor penalties could be enforced, but the EV cast could not be changed, canceled or retracted) and 21 do not, that some States state that the vote of a faithless elector is null (never tested in court), that some State electors may vote in private (I’m not sure about this; my quick research was inconclusive), and you can see the potential for absolutely massive political intrigue and machinations.

  5. By 2020, using the built-in method that the Constitution provides for states to make changes, the National Popular Vote bill could guarantee the presidency to the candidate who receives the most popular votes in the country, by changing state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), without changing anything in the Constitution

    Every vote, everywhere, for every candidate, would be politically relevant and equal in every presidential election.
    No more distorting and divisive red and blue state maps of predictable outcomes.
    No more handful of ‘battleground’ states (where the two major political parties happen to have similar levels of support among voters) where voters and policies are more important than those of the voters in 38+ predictable states that have just been ‘spectators’ and ignored after the conventions.

    The bill would take effect when enacted by states with a majority of the electoral votes—270 of 538.
    All of the presidential electors from the enacting states will be supporters of the presidential candidate receiving the most popular votes in all 50 states (and DC)—thereby guaranteeing that candidate with an Electoral College majority.

    States have enacted and can enact laws that guarantee the votes of their presidential electors

    The Uniform Faithful Presidential Electors Act has a state-administered pledge of faithfulness. Any attempt by a presidential elector to cast a vote in violation of that pledge effectively constitutes resignation from the office of elector. The Act provides a mechanism for immediately filling a vacancy created for that reason (or any other reason).
    The National Popular Vote organization has endorsed this proposed uniform law.

    The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).

    The bill was approved this year by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).
    The bill has passed 34 state legislative chambers in 23 rural, small, medium, large, red, blue, and purple states with 261 electoral votes.
    The bill has been enacted by 11 small, medium, and large jurisdictions with 165 electoral votes – 61% of the way to guaranteeing the presidency to the candidate with the most popular votes in the country

    NationalPopularVote

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