Wednesday, October 12, 2016

Faithless Electors: Could Electors Defect and Conspire to Elect Who They Want?

The other day, I had a conversation with a few friends about the Electoral College.  We had a spirited discussion on this topic because my friend posed the question:  If a bunch of billionaires got together, could they conspire and create enough faithless electors to get their candidate in office?

Before I answer this question, let me give you a bit of background about the Electoral College and then a tad bit of facts about faithless electors.  Don't worry, I promise not to bore you.  Stay with me.

As you know,  those elected as members to the United States Electoral College promise to vote for the presidential or vice presidential candidate their state chooses in the popular vote.  Although ordinary citizens pull the lever for their candidate to occupy the White House, the elector's vote is the vote that actually counts toward the 270 required to elevate a candidate to the office of POTUS.

In most states, electors are chosen by political parties or that party's presidential nominee.  The chosen elector is generally a proven, committed, and faithful member of the party.   This is a safeguard to ensure the faithful vote of electors.  However, this safety mechanism fails to eliminate faithless electors, who are members of the Electoral College that either vote against or abstain from voting for their party's chosen candidate.  

Since the beginning of the electoral college, there have only been 157 instances of faithless voting.  Read here for more information.  Surprisingly, there has never been an instance where faithless electors have affected a presidential race.  There was, however, one close call.  It happened in the election of 1836 where 23 Virginian electors went against the grain and abstained from voting because their vice presidential candidate, Richard Johnson, openly admitted dating his black slave.  This action forced the vote for the office of the vice president to be decided by the Senate, who selected Johnson anyway.  Crisis averted.  Other faithless electors flipped their vote because of their candidate's death or to make a political point.

Ok enough background (I told you I wouldn't bore you), now let's get to the answer.  Again, could a bunch of affluent conspirators gather enough faithless electors and change the course of an election?  My answer may surprise you.  See it after the jump.

So could this really happen?  Technically yes.  But not likely.  Here's why:

1) The circumstances have to be just right.

My bet is that you would need the race to be close, be in a state/s with anonymous elector voting, and be in a state/s that punishes with fines rather than vote invalidation.  Ok, so let's assume the race was close and a candidate won the popular vote with just over 270 votes (for example 275-263).   In theory, the conspirators could pick a state/s that merely imposes fines, has secret ballot votes, gather the requisite Benedict Arnold electors, convince them to defect, pay all their fines, and pay them a pirate's booty for the vote.  When the electors cast their vote in December after the popular vote, enough of them could vote for the opposing candidate thus making the election 270-268.  Sounds easy right?  Not so fast.

2) You would also have to find enough electors that have nothing to lose in their party.

Twenty-nine states have rules which require faithful voting.  Most of these states chose electors with a long history of loyalty in a party.  And as you know, politics breed fiercely loyal party members.  So you'd have to find enough voters willing to defect, who don't care about party loyalty and, who don't mind permanent bans from their party.  Oh yeah, they would be pretty much out of politics completely because no one likes a traitor.  But let's say blood money trumped loyalty and the electors didn't care about being ostracized from their party.  Good as done right?  Not really.

3)  States would quickly preclude this action.

This unprecedented action would scare the willies out of state governments and they would go berserk. The actions of the faithless electors would immediately get tied up in state court as states try to figure out what happened, how to fix it, and how to prevent it from happening again.  For example, maybe a state would refuse to certify the votes and send it to Congress.  Maybe a state court would interpret some archaic rule and decertify the vote.  Other states would rush to revise their own procedures.  Who knows.  Even still, let's assume the state/s couldn't retroactively enact rules to reverse the faithless electors.  Do the faithless prevail? Nope.  And here's where things get really serious.

4)  The Supreme Court would get involved.

To date, even though the SCOTUS has ruled that it is not unconstitutional for states to require a pledge from electors, it has never ruled on the constitutionality of state punishment against faithless electors. See Ray v. Blair, 343 U.S. 214 (1952).  After all the ruckus in the state/s I would bet a month's pay this issue would rocket to the Court's docket.  Once it became known that multiple electors flipped their vote, the conspiracy would be clear and the slighted party would rightfully raise hell.  The SCOTUS would face tremendous pressure from the party, the media and the American people to right the wrong.  I am fairly certain the Court would confer and make quick work of the actions of the faithless electors.  Personally, even if the majority of the Court supported the party of the faithless electors, siding with the defectors would create terrible precedent and could cause total chaos in future elections.  The Court knows this and I am confident it would strike the action down.  Done. Finis. Sayonara. Goodbye.

Please believe that this idea is already out there.  In fact, because of the tough time Trump is having in this election, the possibility of removing him using faithless electors is actually being analyzed.  However, I just don't see this happening on a large enough scale to affect a presidential race.  I think this strategy to remove a candidate would be DOA (dead on arrival) upon reaching the Supreme Court and all would be well again.  I mean the voice of the people should be heard right? But then again, stranger things have happened.

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