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Why Does the Unconstitutionality of Prohibiting Faithless Electors Seem Problematic?

In my last post, I argued that the original meaning forbids states from passing laws that prohibit faithless voting by the electoral college.  But if the original meaning imposes this prohibition, then why does such faithless voting seem problematic even to an originalist like me?

One problem is that the practice in this country, for a very long time, has involved electoral college voters being understood as voting for the pledged candidate.  But the mere fact of practice cannot be sufficient.  There are plenty of unconstitutional practices that I would happily see eliminated.

A second problem is that this practice has been part of the rules of the competitive game of elections.  The two parties compete according to existing rules.  When those rules appear to be changed in midstream to the advantage of one or the other party, it seems much more problematic than in other situations.

But perhaps the most significant reason I am troubled by following the original meaning in this area is that the electors’ names are not on the ballot.  Assume that the electoral college worked the way that the original meaning seems to suggest it should: independent electors cannot be forced to vote for a particular candidate but instead can exercise independent judgment.  If that were the case, then the people we were electing would really matter.  We should know who they are.  We should be choosing between voting for John Doe, who is a scientist, and Sally Smith, who is a lawyer.  But we do not.  The only name on the ballot is actually that of the candidate the elector is pledged for.  Thus, it is natural to assume that we are actually voting for the candidate.  If the elector does not vote for the pledged candidate, it appears like the rug was pulled out from under us.

One might wonder whether this arrangement is constitutional.  After all, would it really be constitutional if a state sought to hold a congressional election but did not put the names on the ballot?  While such an election would certainly violate democratic norms, it probably would not be unconstitutional.  The Constitution merely states that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ….”  Presumably, a ballot without the electors’ names is one such way.  The best argument on the other side is that a nameless ballot somehow violates the Republican Form of Government Clause, but it is likely (although not certain) that the names of the pledged candidates on the ballot is sufficient to avoid violating the Clause.

To be clear, I am not arguing here that we should not follow the original meaning in this area.  I believe we should.  I just believe that it would be best if that original meaning were announced ahead of time, so that a change in the rules did not interfere with a presidential election.

Reader Discussion

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on December 22, 2016 at 10:58:29 am

Some very interesting points on the matter. I have a question only remotely on topic - how is possible that Bill Clinton, whose wife was on the ballot, was permitted to remain an elector - does nothing in the process correct for such obvious, if most rare, instances of bias and conflict of interest? Since he remained, I can presume there is not, but shouldn't there be? Just on principle, of course, as it would be highly unlikely that a single electoral vote could throw the election; as unlikely as the spouse of a former president becoming president, or of Trump becoming president?

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Paul Binotto
on December 22, 2016 at 11:40:56 am

Bias isn't really a problem in the modern elector system because they are only being elected for a single task. In some ways we WANT them to biased, so that they are less likely to be faithless electors. They are not, currently, being elected to be unbiased judges of who should be president, just to place their votes as the people of the state want them to.

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Devin Watkins
on December 22, 2016 at 11:47:23 am

I would be somewhat OK with an amendment that just said the state legislature can allocate their electoral votes in whatever manner they chose, including to the choice of an elector. The only real advantage that the current system has over one that assigned the votes without electors is that if there is a major unexpected problem, like the President-elect and Vice-President elect die or become incapacitated, or do something really bad after the election (like murder someone), potentially the electors can choose someone else.

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Devin Watkins
on December 22, 2016 at 12:40:51 pm

Yes, of course! Makes perfect sense. I wasn't reasoning properly - thanks for redirecting my thoughts along the more logical path.

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Paul Binotto
on December 23, 2016 at 13:08:05 pm

FIRST OFF: MERRY CHRISTMAS AND HAPPY HANUKAH TO ALL at LLB:

I, too, would be comfortable with an amendment that would assign the votes per state voting results.
However, I don;t believe it is required.

Professor Rappaport hits on something that I believe resonates with most of the citizenry. "Isn't it odd that in the end the electors could choose to disavow the voice of the people?", one might ask.

This strikes home to me and i think to many others. We may cite any of a number of comments made by certain historical personalities in an effort to support either a "bound" or a "free" elector. This is neither surprising nor necessarily wrong. Indeed, I sometimes think that without recourse to "dueling quotations" much of the legal academy would have to seek their intellectual exercise / stimulation in some other field. Fear not, my friends, there is, and will always be sufficient ambiguity and or contrary quotes from our predecessors to keep a legion of scholars occupied.

Yet, as Rappaport says, something about an unbound elector does not pass the smell test. What do we do?

Recently at the Originalism Blog, Mike Ramsey weighed in on this matter as well as some other matters. (BTW: Good Blog - highly recommend it). In the "elector" one Ramsey asserted, as does Devin Watkins above, that States may require a pledge of faithfulness but cannot require actual faithfulness. Odd, isn;t it. Seems like saying a State may require a citizen pledge the payment of taxes but is not competent to require that he actually pay them. (OK, not the best example, but...)
In a later post covering a different matter Ramsey argues that proper interpretation / construction requires that one consider the "whole" document. (I'll skip the detail). This seems eminently sensible. Parties to a contract ought not, and may not, consider only the clauses favorable to their position. Why is this not also true for the US constitution?

As Rappaport acknowledges the ability of some unknown persons to simply deny the vote of the people is a matter that causes some (high?) level of discomfort / unease in perhaps ALL who voted. Witness the current outrage over the popular vs electoral college votes. We are right to feel a sense of unease in this matter. Is it fair to say that one would feel a sense of moral outrage should the electoral Vote winner be denied the Office?

Let us take Ramsey's (and others BTW) assertion that we consider the whole document. Incidentally, this is not at all dissimilar from say the "Engagement" types argument that we must consider the "spirit of the thing."

I would argue that both the structure of the Federal Republic AND the underlying predicate of the Republic, i.e., that government derives its power from the consent of the governed OUGHT to be weighed when reviewing the authority of a (semi-) sovereign State to *bind* its electors. Failure to do so denies to the States their own reserved powers and makes a mockery of the notion of "consent of the governed."

What is more, to allow the Electors to override or ignore the will of the voters is to permit what Hamilton (and Madison) was ever so wary of - the rise of a successful faction that would seek to deny the will of the people. Funny, isn't it that the mechanism he chose / supported, the Electoral College meeting in the capitols of the Several States in order to prevent a successful electoral coup at the hands of a *faction* is now construed by modern academics to permit, if not encourage, just such a possibility (albeit a distinctly remote one). What else can possibly arise from a situation where an elector is free to exercise his / her "conscience"?

Does not such a situation, such an eventuality not violate the spirit of the Constitution, indeed, the very fabric of the Republic.
What are we to end up with, then? One can envision a situation not unlike that which prevailed in State Legislatures prior to, and indeed the cause of in some respects, the passage of the 17th Amendment, where (at its worst) almost 20% of seats in the US Senate went unfilled because Legislators "voted their conscience" (read: party affiliation).

Not quite what the Framers had in mind, don;t you think?

Nope, look to the whole document, its structure, its spirit (yes, can be tricky ala "penumbras, etc); but it seems a far better approach than parsing "dueling quotations."

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gabe

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