Election’s outcome could depend on faithless electors

During the wee hours of Wednesday morning, President Donald Trump proclaimed victory in Tuesday’s presidential election. Former Vice President Joe Biden countered on Wednesday afternoon that, although he was not declaring himself the winner, he “believes” that after all the votes have been counted, he will have won. Who is correct?

If the men and women who constitute the Electoral College do the job the Constitution assigns to them, President Trump is right. Vice President Biden will win the national popular vote by several million, but the president and vice president of the United States are selected by the Electoral College, not directly by the American people. 

To understand why, there is no better place to turn than to the Federalist Papers written by Alexander Hamilton, James Madison, and John Jay. After all, the Federalist Papers are widely regarded as the greatest treatise in American political thought, not to mention the best insight into what the framers of the Constitution intended the Constitution to mean.

Hamilton devoted Federalist Paper 68 to explaining why the Electoral College is essential to the Constitution’s success. No. 68 is the only Federalist Paper to describe the method of selecting the president, and it is therefore critical to understand what Hamilton said in that essay, especially in contentious times such as ours.

The Electoral College is a body of electors that forms every four years for the sole purpose of electing the president and vice president of the United States. At present, the Electoral College consists of 538 electors, and an absolute majority of electoral votes, 270 or more, is required to win the election. Hamilton viewed the indirect electoral process embodied in the Electoral College as superior to direct popular election because the electors would be “men most capable of analyzing the qualities adapted to the station and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.”

Electors would be “most likely to have the information and discernment” to make a good choice, Hamilton continued, and to avoid the election of anyone “not in an eminent degree endowed with the requisite qualifications.” To minimize the risk of foreign machinations and inducements, the Electoral College members would have only a “transient existence” and no elector could be a “senator, representative, or other person holding a place of trust or profit under the United States.” Electors would make their choice in a “detached situation,” whereas a pre-existing body of federal office-holders “might be tampered with beforehand to prostitute their votes.”

Finally, Hamilton expressed confidence “that there will be a constant probability of seeing the station filled by characters preeminent for ability and virtue.” And while Trump’s penchant for Twitter tirades may strike many as “un-virtuous,” nobody is perfect, including Biden.

But with respect to the “abilities” that should matter most — keeping the nation prosperous and at peace — Trump is unquestionably the best qualified of the candidates to be president. Until the COVID-19 pandemic disrupted the world, the American economy was stronger than it had ever been, and it is currently recovering in record time and at a record pace even while the American people continue to wait for our talented scientists to develop a vaccine.

As far as peace is concerned, the United States has not been engaged in a single war — not one — while Trump has been president, and his diplomatic successes with North Korea, China, and in the Middle East have been unfairly ignored by a media that has endeavored to undermine his presidency since the day he was elected in 2016.

In closing, it is important to note that most states continue to allow their electors to vote as the framers’ intended: for the man or woman the elector believes is the most qualified to be president. In other words, in what has unfortunately come to be known as the “faithless elector” scenario, the elector would not vote for the presidential candidate who captured the popular vote in the elector’s home state. Rather, the elector would vote for the candidate he or she thinks is best. To make this point another way, the color-coded maps that are transmitted across America’s TV screens, computer terminals, and newspaper pages asserting how many electoral votes Joe Biden or Donald Trump are projected to win at that particular moment in time do not matter one whit.

What matters is that each state’s electors meet in their respective state capitals on the first Monday after the second Wednesday of December to cast their votes. The results are counted by Congress, where they are tabulated in the first week of January before a joint meeting of the Senate and House of Representatives, presided over by the vice president, as president of the Senate.

With any luck, Donald Trump will be re-elected president on that day and in that place. The Constitution requires no less.

Scott Douglas Gerber is a law professor at Ohio Northern University and an associated scholar at Brown University’s Political Theory Project. His nine books include “First Principles: The Jurisprudence of Clarence Thomas.”