On Nov. 3, Pennsylvania voters will cast votes for president. About five weeks later, on Dec. 14, 20 Pennsylvanians designated by the winning candidate as electors will convene in Harrisburg to formally cast their votes for the winner. On Jan. 6, 2021, Congress will count those votes, together with the electoral votes cast in the 49 other states and the District of Columbia. The candidate with 270 or more electoral votes becomes president.
Except it’s not that simple.
Here’s why: Those electors in Harrisburg aren’t actually required to cast votes for the candidate who won the Pennsylvania popular vote. Some states have laws explicitly directing electors how to vote, removing them if necessary, while others impose fines on so-called faithless electors after the fact. But Pennsylvania does neither (nor does New Jersey) — and it’s unclear whether states can force the electors to comply anyway. Indeed, in 2016, seven electors across the country cast votes for people who weren’t Donald Trump or Hillary Clinton, instead choosing to vote for Colin Powell, Bernie Sanders, and John Kasich. In 2000, even fewer electoral votes separated George W. Bush from Al Gore.
Could rogue electors swing the results of a presidential election?
This is the question raised by a pair of cases the U.S. Supreme Court recently agreed to hear: Does the Constitution allow states to require their electors to vote in accordance with the state’s popular vote, or are they free to vote their conscience?
One of the cases, from Washington state, was brought on behalf of three of that state’s 2016 Clinton electors who cast votes for Powell instead; each was fined $1,000 for doing so. (Their lead counsel is Harvard Law professor Lawrence Lessig, who twice taught me; I later represented him once as my client. We have not discussed this case.) The second case concerns a Colorado elector who was removed for attempting to vote for Kasich rather than the state’s popular-vote winner, Hillary Clinton.
The electors’ chief argument is that freedom for electors to vote their conscience is exactly what the Founders intended. Alexander Hamilton justified the Electoral College on the grounds that “a small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite” to choose a president, that they would be less inclined to “heats and ferments,” and ensure the presidency was filled by “characters preeminent for ability and virtue.” Further, Hamilton argued, the electors would be less vulnerable to being corrupted because they could not be existing federal officeholders or employees, and would be meeting separately in each state rather than convening in the nation’s capital.
Obviously, things haven’t worked out this way. Recent history has rejected Hamilton’s prediction that independent electors would protect America from presidents who possessed “talents for low intrigue, and the little arts of popularity” — though, to be sure, that’s in part because we have such strong expectations that electors will vote as directed.
But if the court holds that the Framers intended to allow all electors to vote their consciences, I suspect that Americans would not long tolerate a situation in which only 538 people really did choose the president.
The question is: What comes next? And here, the stumbling block is that any solution requires a constitutional amendment, and that in turn means a plan sufficient to garner support from two-thirds of each chamber of Congress as well as ratification by three-quarters of the states.
It is difficult to imagine a bipartisan solution to this very partisan problem. A national popular vote, no matter how common sense it might seem, is unlikely to obtain such supermajority support in a polarized nation, given the perception that it is more likely to support Democratic presidential candidates than the status quo does.
Similarly, why would larger, Democratic-leaning states ratify any restoration of the Electoral College (but with truly bound electors), a system that violates one person, one vote and that disproportionately boosts the power of low-population (and largely, whiter) states?
A stalemate is likely, and I offer no magical solutions here. We can only hope that there comes no future December where we find ourselves with a president-elect chosen by electors in defiance of their states’ voters. If you thought the reaction to the Bush v. Gore decision was bad …