Last week’s presidential election was the second one this century in which the candidate who received the most votes nationwide will not become President. The reason for this is, of course, the so-called electoral college. In the weeks and months that follow, the country likely will (as we did in 2000-2001) have some national discussion on whether the electoral college is the best way to select a president, or instead whether a national popular vote is a more justifiable mode. I hope some of the discussion centers on the National Popular Vote (NPV) Plan, about which I’ve written a great deal, both in academic journals and also on this website (for example here). The NPV Plan (about which I’m sure I will write more) would, if adopted by the requisite number of states, move the nation close to a national popular election, in that a majority of electors selected would be folks who have pledged to vote for the presidential candidate with the highest number of votes nationally (regardless of who had the most votes in any one state). But the NPV Plan would not, by its terms, deal with the problem of the “faithless elector”—a person who pledges to vote in a particular way but then who wants to cast his or her electoral college vote in a different direction. (Only a constitutional amendment changing the electoral college directly—which is unlikely to be enacted—could solve the faithless elector problem definitively.) The nation has had faithless electors in the past, and may very well have one or more next month, although no faithless elector has, on account of faithlessness, altered a presidential election result.
But just like (what I call) “inversion” (the popular vote winner losing the presidency), a faithless elector determining the presidential outcome could easily happen. If this year’s contest had been a bit closer in the electoral college (had Clinton nosed out Trump in the very close Pennsylvania, Michigan and Wisconsin races, but lost New Hampshire, leaving Clinton exactly at the 270 needed to win), then the announced intentions of faithlessness of one or more electors in the State of Washington could have made the difference. According to press accounts, Washington democratic elector Robert Satiacum, who had who had supported Vermont Sen. Bernie Sanders as the Democratic presidential nominee, announced he would not cast an electoral college vote for Clinton, notwithstanding that the voters in Washington selected him to do just that: “No, no, no on Hillary. Absolutely not. No way,” he said. “I hope it comes down to a swing vote and it’s me,” he added. “Good. She ain’t getting it. Maybe it’ll wake this country up.”
It is not clear that existing law in Washington (or elsewhere) provides an effective way to deal with this kind of democratic betrayal. The Washington state statute currently in place says:
The electors of the president and vice president shall convene at the seat of government on the day fixed by federal statute, at the hour of twelve o’clock noon of that day. If there is any vacancy in the office of an elector occasioned by death, refusal to act, neglect to attend, or otherwise, the electors present shall immediately proceed to fill it by voice vote, and plurality of votes. When all of the electors have appeared and the vacancies have been filled they shall constitute the college of electors of the state of Washington, and shall proceed to perform the duties required of them by the Constitution and laws of the United States. Any elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars.
The phrase “or otherwise” might give the state’s electors, as a group, a basis for ousting a faithless elector and filling the vacancy with someone who would abide by the state electorate’s wishes, but such power is not clear, and it may be undermined by the last sentence, which some might read as allowing faithlessness provided an elector is willing to pay the (small) price. Moreover, the way the statute is written, the majority of electors would have to create and fill the vacancy before the voting “duties [under federal law] have been performed, and not all faithless electors will be brazen or foolish enough to announce their faithlessness before they actually cast their votes.
I think Washington (and every other state as well, as long as we have an electoral college) should consider passing a law that says something like the following:
The electors of the president and vice president selected by the voters of the state on the date prescribed by federal law as national election day shall convene at the seat of government on the day fixed by federal statute, at the hour of twelve o’clock noon of that day. The electors shall perform the duties required of them by the Constitution and laws of the United States by voting separately for president and vice president. After a vote of the electors is taken, it becomes final if no elector objects shortly thereafter. But if any elector objects to the vote, another vote shall be taken, in which a majority shall decide whether the previous vote should be considered final. Once a vote is final, its results shall be certified to the relevant state authorities. But prior to a final vote being accomplished, the electors, like each house of Congress, may expel members of the electoral group for bad behavior, including refusal to act or refusal to act faithfully, and may fill any vacancy in the office of an elector occasioned by death, refusal to act, refusal to act faithfully, neglect to attend, or otherwise, by voice vote, and plurality of votes.
My proposed template solution doesn’t solve the problem of en masse faithlessness by a group of electors, but it does deal with rogue individuals. Some will argue that it unlawfully deprives each elector of his/her constitutionally guaranteed independence, but even if electors are supposed by the Constitution to be independent, it is not clear that such independence applies to each individual elector, as opposed to the group of electors. (Each house and member of Congress is independent, but each house can effectively render null the vote of any member by expulsion and a new vote.)
There might also be some tension between my proposal and the timelines set up in a federal statute passed in the nineteenth century to deal with disputes over the appointment of electors, but my proposed statute does not, strictly speaking, relate to disputes over appointment so much as removal of persons who were appointed. Moreover, the federal statute does not tell states what to do; it merely provides that any dispute resolutions that states reach in particular ways at particular times will be respected by Congress when it tallies electoral college votes. It has never been clear whether Congressional vote talliers would be obligated to follow the federal statute anyway. And if my proposed solution satisfies Article II of the Constitution, states needn’t worry about a statutory “safe harbor.” Finally, if there is tension between my proposed solution (or other proposed solutions) to the faithless elector problem and federal law, federal statutes should be rewritten. Such statutory revision, unlike constitutional amendment, is within the realm of the politically feasible.)
Perhaps my proposal isn’t the best approach. For example, I have seen reports that Minnesota amended its laws (after an incident of faithlessness) to provide that “any faithless votes would be considered as a resignation of the office, the vote would be vacated, and the elector would be immediately replaced.” Maybe this solution works too, or better (although the fact that the vote has been taken and has to be “vacated” seems more troubling to me than a device that recognizes the first vote’s lack of finality in the first place.) But my bigger point is that we really should be thinking about dealing with faithless electors in a legally workable way now, before one of them in four or eight years creates a nightmare that, to use Mr. Satiacum’s words, “wakes [the] country up.”