3-step test for future ‘faithless electors’ — determining if you’re wise, or just selfish

The 2016 election has put unprecedented stress on our presidential election system. President-elect Trump started by calling the system “rigged” and offering that he might not accept the results.

Public statements by the FBI and selected leaks of e-mails raised questions about third parties improperly influencing the elections and fears were even raised about potential “hacking” of the voting machines. Secretary Clinton didn’t immediately and publicly concede.

Then it really got interesting!

I have spent 20 years defending the Electoral College against people, mostly on the left but not universally, who attacked the system because of the “nightmare scenario” of “Faithless Electors.”

{mosads}Then came the Trump victory and all concern about electors “going rogue” or being “faithless” was thrown out the window.

Hollywood actors and Saturday Night Live cut videos urging electors to vote against their pledge.

A group called the “Hamilton Electors” was formed to encourage and support electors voting against the Republican nominee.

Petitions were signed and protests were held.

Electors were then challenged by receiving thousands of phone calls, e-mails, and being subject to social media bullying. Some even reported death threats.

Suddenly, the Left’s “nightmare scenario” had become its ethical imperative.

The electors were challenged but, in the end, only seven proved “faithless” and the majority of them were actually Clinton electors. Only two Trump electors defected, leaving Trump with a comfortable 34-vote cushion. However, the seven defectors represent the biggest pool of “faithless” electors in more than 200 years.

NEW: More Dem electors defecting than Republicans in Electoral College https://t.co/o14zaL2aGO pic.twitter.com/rR5BveOOm1

— The Hill (@thehill) December 19, 2016

With demographic changes, a deeply divided nation and a fragmented electoral map, we may see more of these kinds of divisive political moments and should be prepared for them.

Do electors being “faithless” make up a nightmare scenario we should be concerned with? Or, are they free to use their best judgment to decide who they think should be president? The answer, I submit, is “yes” to both and in there is the test to guide future electors.

The Electoral College today does not function as its creators intended.

They intended a truly deliberative system based in the states where, to quote Alexander Hamilton, “some fit person” would be chosen for the office of Chief Executive. They wanted the state legislatures to choose exceptionally wise and virtuous leaders to talk about the candidates and make a deliberate choice.

According to the Founder’s vision, then, an elector has every right to be “faithless” and vote their conscience.

On the other hand, as America has democratized, the Electoral College system has evolved with the changes in the nation.

The system now is mostly a way to do electoral math — We have 51 democratic elections (the 50 states and Washington, D.C.) and we give each state’s electoral votes to the electors pledged to vote the way the people of their state voted.

For years, opponents of the Electoral College have seen any elector being “faithless” as a direct affront to democratic self-government as they are now intended to simply rubberstamp the decisions of the voters.

POLL: Voters want popular vote to replace Electoral College: https://t.co/ogTClTpj9B pic.twitter.com/B7ipgsOBfF

— The Hill (@thehill) December 19, 2016

To make the most of the remnant of our Founders’ vision in our more democratic age, let me propose the following “Break in Case of Emergency” three-part test for future electors to consider before casting their votes:

1. We live in a democratic republic and have decided the will of the voters should be paramount in electing representatives. Therefore, electors should vote the way their state’s voters chose to vote except in extraordinary emergency situations.

2. What would an extraordinary emergency situation look like? To raise to the level of an emergency triggering the free will of the electors, new information would have to be available that the voters did not have access to when they voted.

And, this information would need to be of such import that a reasonable elector would determine that if it had been known, it would have changed the outcome of the election.

According to these parts of the test, electors would be free to break their pledges in order to save the nation but would not be free simply to decide that their judgment is better than that of the voters.

Nothing that came to light in the period between the popular election on Nov. 8 and the Electoral College vote on Dec. 19 this year would have passed this emergency test.

Trump hails “historic landslide” after Electoral College win https://t.co/b5l2dOQkk2 pic.twitter.com/HrcBLedck2

— The Hill (@thehill) December 20, 2016

The voters should reasonably have been expected to know that it was likely that Russia had hacked the DNC and leaked the results to hurt Clinton and/or help Trump. Clinton, after all, reminded America of that every time she was challenged by the facts revealed in the leaks.

The voters should also be expected to know that the winner of the national popular vote does not necessarily become president.

What kind of information could have triggered the emergency situation in 2016? Well, it might have been something like evidence that the president-elect had promised favors to Russia in exchange for their assistance in winning the election. Or, perhaps the president-elect announced that he planned to enact patently unconstitutional policies that were not discussed during the campaign.

3. And how should these electors vote in such an emergency situation? Well, they should not vote for the candidate who lost the popular vote. That candidate would already have been rejected.

Rather, they should vote for “some fit person” for president with the goal of denying all candidates an Electoral College majority and thereby throwing the election into the House of Representatives.

The House, then, could deliberate and vote for a president from among the top three garnering electoral votes. This would allow actual representatives of the American people assembled in Congress to digest the information available, consider their options, and choose the person they find most fit to be president.

Of course, individual electors would have to make their own judgments as to whether the situation rose to the level of an emergency that would justify their breaking their oaths.

But, guided by this test, we can be better assured that “faithless” electors will not be a problem in routine situations but might serve to save us from a constitutional crisis in an emergency.

Gary L. Gregg II is director of the McConnell Center at the University of Louisville and editor of “Securing Democracy: Why We Have an Electoral College.”

The views expressed by contributors are their own and not the views of The Hill.