No. The institution has been designed, through centuries of actual actions, to ratify the election and nothing else. Its permission to do otherwise has lapsed. Any refusal to act as instructed should be corrected first and justified second. The electors are our constitutional monarch and they should be kept on the appropriate leash for such functionaries, whether strictly legal or not.
“Follow the law even if it sucks” is actually an important democratic norm, but we don’t know yet that it’s more important than “the president is elected.” And when these dueling issues are battled out, sometimes it’s messy. Hopefully it wouldn’t be.
The problem with disobeying the law here is twofold: First, who carries out this action? A President cannot just seat themselves, that’s known as a coup. Second, SCOTUS would have to be the final arbiter and all of their precedent plus the written text of the law says the electors have the say.
The American public vote for one candidate, and a small handful of other people overturn their choice, and you think this wouldn’t endanger the republic? Are you kidding?
No such fine print exists on NC ballots, I’m almost certain. I didn’t vote for electors, I voted for president. The mechanism by which my vote is carried out is electors, but there’s no reason I can find in the constitution why I can’t vote for the electors chosen by my candidate after the election. If you think otherwise, can you cite chapter and verse?
The only “crisis” will be that we either abolish the EC(while keeping the EV system, just automating the process), or the public decides that the choice was well made. More likely the former, but we are a nation of laws, and the law says the electors choose, as a bulwark against really poor choices on the part of the public. Or more accurately, really bad choices on the part of party faithful in both parties. Two candidates under FBI investigation is more than enough reason for the Electoral College to make a different choice. IT’s what the founders put it there for.
Even if there’s something in the constitution that forbids this practice, an easy change would be to allow the campaigns to choose their electors a week before the election; surely nothing in the constitution sets the schedule by which campaigns choose their electors. Hell, couldn’t they technically make that choice at 11:59 of the Monday before polls open?
I agree that this is how it’s universally perceived as operating, and when it gets to brass tacks these perceptions can be even more important than the actual text of the law. But the way the law operates currently you definitely voted for which group of 15 people you want to be elected to serve as presidential electors. Somewhere, you can go look up which group of people you voted for. You’ve probably never heard of them.
Enough with the sanctimonious reverence for our beloved Constitution. It was also designed at a complete different time and under different circumstances. The American constitution is actually quite old, and quite flawed. The only reason all 50 states abide by it is the fact that the national military brutally crushed an insurrection of states who no longer wanted to be part of the Union. In doing so, President Lincoln is also known to have violated the Constitution by suspending civil liberties, something the public probably tolerates in times of national emergency but nevertheless not authorized in any way shape or form in the Constitution itself. It is a highly flawed document that permitted slavery, led to a brutal civil war, failed to follow through on the promise of equality, failed to bar states and private powers from oppressing vulnerable minorities, threatens to reverse itself in this respect yet again, and provides a model that has failed miserably in a majority of countries that have tried to adopt it.
Again, flawed logic. The problem is that by refusing to vote for the more popular choice, the choice of the voters, the less popular choice is more likely to become the president. We can wish there were another choice – reneging on the pledge to honor the will of voters does nothing to further that cause. There isn’t another choice. There is a choice between a candidate that is more popular and a candidate or two that are less so. That’s it.
In any case, the Constitution retains the electors and it does so at the risk of inviting political chaos. I am not philosophically opposed to some sort of emergency “eject” button in the event that we discover that, between the time of the popular vote and the time of the electoral ratification, the voters were somehow misled during the election. If, for instance, Hillary Clinton is, in fact, indicted, that might be an instance in which there is cause to reconsider the popular vote. But voting just because he wants to call attention to Native America rights, or because idiot wants to go full-on Bernie Bro is about the shittiest reasons of all to retain this system. Presidential elections, for better or worse, have become much more democratic in the time since the Constitution was written. Americans expect their votes to matter. Taunting us by pointing out that the Constitution technically says something different is asking for it.
I just reviewed my sample ballot, and it asks me to vote for President, not for electors for President. This might be a semantic issue: the mechanism by which my vote is empowered is via electors, but the vote is not for the electors themselves.
How does this make any sense if it’s impossible to vote for President?
In any case, again, even if I’m wrong on this issue, since those electors needn’t appear on paper, what’s to prevent my modified fix of campaigns choosing their electoral representatives immediately before the election, instead of months before?
It would be both. The Founding Fathers were a bunch of amateurs, and the way they designed the institution was stupid and dangerous.
EDIT:
Actually, Lincoln did not violate the Constitution. The relevant portions have clauses that include “except in cases of insurrection”, which the Civil War certainly was.
Then there should be broad agreement to abolish it. We did an amendment to directly elect Senators, which used to be chosen by state legislatures.
Knowing there’s something we don’t want, knowing that the thing we don’t want might actually do what we don’t want it to do but which it legally is supposed to do, and not changing it because it’s “too hard and it wasn’t urgent until it actually happened” is a sign of immaturity on our part.
However, I suspect if the EC did elect someone other than the two, especially if it was the VP on the ticket that got the most votes, that most people would just shrug their shoulders and go back to watching Netflix. An amendment to the Constitution would get fast tracked, this wouldn’t happen again, and Tim Kaine would be reelected no problem in 2020.
LHOD: I believe many or most states require specific slates of electors to be filed by whenever the ballot-appearance closing date is (usually several weeks before) regardless of whether the ballot only shows the popular preference.
Voting for the candidate and then letting the candidate select a slate afterward, would be equivalent of just electing the President based upon a system of 538 assigned weighted points, with no need for live electors – more on this further down.
Although at least in those states operating under “pledged elector” rules, it would make sense that a would-be elector who disregards the pledge *before *the election should be replaced on the slate. After you ARE an Elector, then your vote is yours. Sort of like Jury Nullification - if you announce you support it *before *going in chamber, you’re getting rightfully yanked. If you just DO it there’s nothing they can do to you.
Up to the 1970s in general, and in some states even to this year to the chagrin of some campaings, the primary/causus system did work on the explicit basis of “the people will express a preference, but the state party convention delegates will make a choice”, and even in pledged delegate states today, delegates are routinely substituted between primary date and convention registration deadline, just as long as the pledged votes still add up. For two centuries the Electoral College had, with a few exceptions, de facto held the opposite line, that the states’ mandate (notice: not the global popular vote - the states’ each separately) would be obeyed. Of course, that was because the party delegates had done the hard work of vetting the candidates, and the checks and balances would do that of containing anyone who proved he was in above his head. But like the WTA method of selecting electors, that has been something that is so only because “we’ve done it this way as long as we remember” not because it’s mandated.
Still and all, it WOULD be a shitstorm if the EC as a whole decided to completely disregard the citizenry’s vote, or individual electors decided to prevent its taking effect. An entirely constitutionally lawful shitstorm but one nonetheless. Big rise in the stock of makers of teargas, water cannon and beanbag rounds, at best…
(BTW I believe if they do want to deny an electoral College victory they’d at most just punt it to the House and Senate rather than vote for someone else specific – it seems with only a month to get their act together to favor somebody else they would not make it.)
Whatever system is used (and you have no constitutional right to vote on them at all!), the electors must be chosen according to how Congress dictates, not the individual states. The “Time of choosing the Electors” could conceivably be a time frame, as opposed to a given day; indeed, I believe that’s how it worked back at the start.
North Carolina ballots do not specify that your presidential preference vote is a vote for electors, rather than the candidates themselves. South Carolina ballots are the same.
To be clear, then, are you’re agreeing with me? That is, a state could choose its electors based on the preferences of the candidate who won the popular vote in the state? If on November 8 more Tarheels vote for Clinton, on November 9 NC could ask Clinton to choose 15 electors?
Edit: it says “Congress may determine,” not “Congress must determine.” How has Congress determined, specifically?
As for the rest of the discussion in here, what a lot of nonsense. Faithless electors happen. There have been nine of them in the last 100 years. Prior to that, there were a lot of them, but mostly because of squabbles over vice-presidential candidates. A good compilation can be found at http://www.fairvote.org/faithless_electors.
No faithless elector has ever changed the result of the election. Even in this case, the only scenario under which this person would change the result is if Ms. Clinton wins exactly 270 electors. Any more than that, and she still wins; any fewer and she either loses, or it goes to the House, regardless of his vote. The chance of exactly 270 votes is slim to none. Save your breaths.
No, I am not saying North Carolina can do that. I am saying North Carolina can do that ONLY if the enabling legislation passed by Congress allows the choosing of electors during the post-election time frame. For what Congress has said about this, go see 3 USC Ch. 1 (Sec. 1 et seq.).
Congress presumably could refuse to legislate on the subject (“may” vs. “shall”). But it hasn’t, so North Carolina is constrained by the law. The only time that North Carolina (or any other state) is allowed to choose their slate of electors after the general election is in the case that the general election fails to result in a choice. That is, you hold the election, but by the rules of the election, the people of the state fail to make a choice. For example, if the state required that the winner take a majority of all votes, but the leading candidate took a plurality, this would be the case. Under that circumstance (the election fails to determine who gets the electors) ONLY, the state then can choose its electors according to a method established by the legislature of the state.
It is argued that this language (which is essentially identical to the original Article II language) precludes the states from attempting to require a particular vote out of an elector. The argument essentially is based on the idea that the Constitution empowers the electors to vote, and they get to vote by a ballot, and that any attempt to infringe on their ability to vote as they choose by a state would place a qualification on this power. Generally, states (and the Congress) are not allowed to place added qualifications on empowerments granted by the Constitution. For a similar sort of argument on limiting grants of empowerment by the Constitution, see the discussion as to whether Hillary Clinton is/would be barred from the office of President by 18 USC 2071.
None of the currently enacted laws regarding faithless electors has been tested in court.
I’m more concerned about a situation where an outside actor (outside the Electoral College, that is; not necessarily outside the electoral process) decided to try to change the outcome between Election Day and the meetings of the electors in mid-December.
For instance, say Hillary wins her Blue Wall (excluding Maine’s Second District) but nowhere else. She’d have 272 EVs before faithless electors entered into the equation. So the Koch brothers have their people research Hillary electors to identify a few whose hearts may be less than totally in it, and secretly offer them each $100,000,000 to vote for anyone besides the Clinton/Kaine ticket.
The election gets thrown into the House, Trump wins in the House, and the Koch brothers get a bargain.
