Anti-Electoral College activists hope for chaos

Can presidential electors vote for any candidate they choose? Or must they vote for the candidate who won their states’ popular votes? These questions long have remained unresolved, but now the Supreme Court will tackle the issue.

Anti-Electoral College activists want the decision to work in their favor.

If the Supreme Court holds that electors are free agents who can vote their conscience, these activists hope for panic, discontent and outrage. They hope that voters will be scared into giving them what they’ve always wanted: a constitutional amendment eliminating the Electoral College.

Don’t fall for it. However the court rules, the Electoral College is far more stable than its detractors will acknowledge.

The appeal before the Supreme Court originated from two cases: In Washington, a court held that presidential electors can be required to vote in a certain way or be fined. The 10th Circuit disagreed, holding that electors can vote their conscience.

Presidential electors are elected officials, just as members of Congress are. None of these officials can be booted from office when they break a promise to their constituents. Voters’ recourse is to elect someone new the next time.

If the Supreme Court agrees with the 10th Circuit, is this cause for panic? Will everything change? Will electors begin voting at random, or can we still count on electors to vote in accordance with their own states’ outcomes?

More than 200 years of experience proves the Electoral College can be trusted.

As a matter of history, the “problem” of faithless electors has been mostly theoretical. Of the nearly 24,000 electoral votes cast since 1789, fewer than 30 of these votes have been indisputably cast contrary to voter expectations. 

The first of these electors, in 1796, changed his vote to satisfy his own state. He personally preferred John Adams, but the state tally had come out for Thomas Jefferson. Thus, he voted for Jefferson. 

Most of the other independent votes were cast for opportunistic reasons. No faithless elector has ever changed the outcome of an election.

The structure of the system creates this stability. Electors typically want to vote as they have been asked to vote. No one is asking a Republican elector to cast a ballot for Hillary Clinton or a Democratic elector to vote for Donald Trump. Electors typically are party loyalists who have been selected because of their hard work during a political campaign. Most would never dream of voting for any other candidate, absent a genuine emergency.

This is why efforts to sway George W. Bush electors in 2000 or Donald Trump electors in 2016 were remarkably unsuccessful. 

If electors are so faithful, should we just automate these votes and eliminate the possibility of human wavering? The Father of the Constitution, James Madison, was confronted with this very question, and his answer was an emphatic “No.”

Madison viewed the electors through a dual lens: He was happy that electors had been voting in accordance with state popular vote outcomes, noting approvingly in 1826 that electors were “generally the mere mouths of their constituents.”

On the other hand, he noted, “They may be intentionally left sometimes to their own judgment. … They will be able, when ascertaining, which may not be till a late hour, that the first choice of their constituents is utterly hopeless, to substitute in the electoral vote the name known to be their second choice.”

Today, the discussion about elector independence has become wrapped up in emotions and opinions about the 2016 presidential election results. Don’t forget that other emergency situations could crop up, leaving Americans happy that their electors can act independently and with simple common sense.

What if a winning presidential candidate were to suffer a debilitating stroke after Election Day, but before the meetings of the Electoral College? Should presidential electors vote lock-step for a candidate whose health has been compromised? Now consider that, if this candidate were to die before Congress counted the votes in January, the electoral votes could be deemed invalid and tossed out.

Forcing electors to vote for a dying candidate could potentially put the losing presidential candidate in the White House. Surely most Americans would rather have their electors vote for the vice presidential candidate in such a circumstance.

Or consider another example: Instead of a health crisis, it’s the discovery of a serious crime. An incumbent president and vice president were just re-elected, but now they’ve been caught on video selling state secrets. The charges of treason are certain to stick. Do Americans want their electors bound, based on votes that were cast long before these facts came to light — even if the winning candidates will be immediately impeached, removed from office, and replaced by someone from the opposite political party? Terrorist attacks, assassination attempts, or other emergencies could create similar problems. 

Madison valued a fine balance between simple democracy and the possibility of occasional, wise intervention when circumstances call for it. If the Supreme Court affirms the idea of elector independence, then the justices will be simply endorsing Madison’s idea: a system that has worked well for centuries.

Tara Ross is a retired lawyer and the author of several books about the Electoral College, including “Why We Need the Electoral College.” Follow her on Twitter @TaraRoss.