The Faithless-Elector Fantasy Is Fun, but It’s Just a Fantasy
When it comes to faithless electors, I wrote the book—literally.
Okay, it was a novel, and a satirical one at that. But I did immerse myself in the law, and the lore, of the Electoral College, and the potential for “faithless” (or rebellious or courageous) electors to throw the whole process of picking a president into a cocked hat. (The novel, The People’s Choice, is available at fine church basements and rummage sales, or here.)
It’s from this perspective that I’m watching the various efforts to deprive Donald Trump of his majority when the electors meet in their respective states this week. There are six Democratic electors from Washington and Colorado trying to persuade their Republican counterparts to join them in voting for Mitt Romney or for Ohio Governor John Kasich. (Kasich’s rejected the idea out of hand). There’s a Texas Trump elector who says he can’t vote for him. There’s Harvard Law Professor Lawrence Lessig, who promises to offer free legal defense to any Trump elector who votes for Hillary Clinton.
It’s all a shadow play—entertaining, provocative, but bearing no relation to current political reality.
In theory, Trump would offer the perfect case for rebellion. He lost the popular vote by 2.7 million votes; four of the last five GOP presidential nominees and a substantial cohort of Republican senators refused to back him. Even now, after the election, a majority of Americans believe he lacks the temperament or qualifications to be president.
But when theory meets reality, the prospects dim to invisibility. To begin with, Trump’s electoral majority is simply too big. Think back to 2000, when George W. Bush emerged from the post-election battle with 271 electoral votes. Had only three of his electors defected to Gore—on the ground, say that Gore had won half a million votes more than Bush, he would have had the majority (at least temporarily; more on that in a moment). Not a single Bush elector bolted; including those unbound by any state law forcing them to stay with their pledged candidate. The prospect of persuading 37 Trump electors to rebel is all but non-existent.
But let’s assume it happened (Maybe Trump could say or do something in the days before December 19th that would prove beyond the pale, though what he’s said and done this last year and a half makes that idea shaky.) Let’s say when the usually ceremonial battling is over, 40 Trump electors have bolted.
Those votes would have to be validated by the appropriate state official, usually the secretary of state (No, not John Kerry, the 50 officials across the country). If these electors were bound by state law to vote for their pledged candidate, that official might well refuse to count that vote; court battles would follow, but it’s by no means clear that such votes would be certified and sent on to Washington.
Meanwhile, the legislatures in states where electors defected might weigh in. It’s hard to believe, but under the Constitution, state legislatures have all but total power over how electors are chosen. They are under no legal obligation to let voters have any say at all; they could designate the Department of Motor Vehicles Commissioner to pick them; or, they could make the choice themselves. (That’s what the Florida legislature threatened to do back in 2000 when the Gore-Bush recount fights dragged on). So should an elector, or two, or six from a state bolt, there’s a good legal case to be made that the state’s legislature could say “no way!” and choose their own slate.
Assume, though, that this doesn’t happen, and that somehow defecting votes are sent to Washington. There’s still the pesky matter of the United States Congress—the final arbiter of these votes.
On January 6, senators and representatives will gather in joint session in the House chamber to receive the votes of the states, with the vice president presiding (that’s why Richard Nixon, Hubert Humphrey, and Al Gore all presided over the ceremony that declared them the losers). They meet to decide whether the votes of each state were “regularly given.” If one senator and one House member objects in writing to the announced vote, the two houses retire to their respective chambers to debate the issue. Is there any basis to believe that a GOP-controlled House and Senate would accept the vote of a defecting elector as “regularly given”? (They have in the past, but in those cases, the stray vote or two had no impact at all on the outcome.)
And even if this process somehow left Trump short of 270 votes, the decision would then move to the House of Representatives. In that body, each state—not each representative—would have one vote (to be determined by a majority of the delegation). In a remarkably undemocratic process, Wyoming’s one member would have the same power as the 53 from California. To become president, a candidate would need a majority of state delegations, or 26. In the new House, Republicans will hold a majority in 30-plus delegations. Do the math. (The Senate would get to choose the vice president, with each senator having one vote; my money would be on Pence).
There may be cases where faithless electors could actually determine the outcome. In my novel, the just-elected President dies in a photo opportunity, thus freeing his electors from any legal or moral obligation to vote for the party’s designated replacement. And, had Trump emerged with the same kind of narrow margin that Bush did, a bolt of a dozen or so electors would throw the outcome into at least a measure of doubt.
But that’s not what this bizarre political year has given us. Trying to change the outcome through an Electoral College revolt is like playing a game of chutes and ladders with only chutes. No matter how many moves you make, sooner or later you wind up in the same place.