Cogito Ergo Non Serviam
Supreme Court Says States May Punish Faithless Electors
In a rare 9-0 decision, the US Supreme Court has upheld the right of states to punish those appointed to the electoral college who fail to vote as they had promised. Historically, the so-called "faithless electors" represent a very small fraction of those who have cast ballots for presidents since George Washington's first election. However, their behavior represents a source of instability that some states wanted to check by fines and other penalties. The Supreme Court has said that is entirely constitutional.
The electoral college was meant to be a conclave of the great and good chosen by the states by whatever means the states chose (technically, the state legislatures could appoint them without a general election if they so legislated). They were to choose a president based on their collective wisdom. As with some other of the founders hopes (the absence of political parties for instance), this proved to be a pipedream. Political office is won through politics. And the presidency is America's most political office.
So it has come to pass that the states allow voters to vote for a slate of electors pledged to vote for a given candidate. The ballot may list the presidential candidate, but local party officials and friends of the candidate are those vying for the position of elector. Over the last two and a third centuries, the custom has evolved of winner-take-all. That is a state entitled to 10 electors will appoint 10 pledged to vote for a candidate who won the state's popular vote, even if that is only a plurality rather than a majority. The two exceptions are Maine and Nebraska, which allow a candidate to have an elector even if he or she loses the statewide vote by winning in a congressional district.
One would have thought that a politician or family member or friend of the candidate who promised to vote for Candidate A would do so automatically. Yet, there have been occasions when an electoral has not. In 1972, Roger MacBridge was a Nixon elector from Virginia who voted for the Libertarian Party candidates of John Hospers for President and Tonie Nathan for Vice President (the first woman to receive an electoral vote). In all presidential elections going back to 1792, such faithless electors account for less than 1%.
Still, in a closely contested election, one or two such electors could cause trouble. The Constitution clearly states that to win a candidate must secure a majority in the electoral college, or the House of Representatives decides the presidential race and the Senate the vice presidential content. They would do so on the basis of one state, one vote.
It is easy to imagine race where winner-takes-all results in a close 271-268 result where the popular vote winner came second in the electoral college. A few unfaithful electorals could vote so as to deny both candidates a majority, and the House would vote over and over without any candidate achieving 26 votes.
To diminish the possibility of such a mess, the states have imposed penalties on unfaithful electors, and the Supreme Court has now held that these are entirely acceptable.
The electoral college is a ridiculous mechanism and thoroughly undemocratic. Two of the last five elections have resulted in the popular vote loser taking the oath of office. It needs to go, but getting rid of it is unlikely because amending the Constitution would require the smaller states that wield disproportionate power in the electoral college would probably not give it up.
This decision does not fix the main problem, but it does mean that the electoral college is less of a crapshoot than it could be.
© Copyright 2020 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Ubuntu Linux.
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