I just wonder if this really could ignite an electors’ coup. Crank electors who wander off the reservation are nothing new, but to be so adamant about it and declaring before the votes are cast seems pretty unprecedented to me. It’s almost as they’re inciting large numbers of others to do the same and I’m sure that among these electors who have pledged their support for the nominee are others who once supported Sanders. I personally know at least two Sanders supporters who still say things “It’s just too bad that Wasserman Schultz and the Democratic party basically threw the election to Clinton.” Up until now Sanders supporters have been relatively well-behaved but they are greenlighting others to “vote their conscience” on grounds that the election was rigged then I could see more protesting the outcome and stealing votes from Clinton, especially if they have convinced themselves she wasn’t the legitimate nominee to begin with. Maybe it doesn’t matter mathematically if Clinton wins more than 300EVs but it absolutely taints her political legitimacy and indeed the legitimacy the election, and if the race does end up close, the election may not end until December or January.
The Constitution gives the Legislatures the power to select electors. It does not give them the power to tell electors how to vote. Faithless elector laws are probably unconstitutional.
Seems a lot of Dopers (I don’t remember if you were one or not) seemed to favor that course if it prevented Trump from getting the Republican nomination.
Not AFTER the election, it can’t, not without violating 3 USC Ch. 1, Sec. 1.
I for one would laugh my head off if Hillary’s political career ended in such fashion.
But Trump is still not capable to hold the office.
True. Though 12am PDT may well be late enough to know for if 2 votes will matter.
Eh, I don’t really think you’re right here. Sec. 1. basically uses Congress’s power to determine when the electors are chosen (a power it has under the constitution–but note the constitution offers congress no power to determine the manner in which the electors are chosen, only the time), but then Sec. 2 of that same act says that:
Now what does “failed to make a choice” mean, well, that actually depends on the State. This part of the law most likely was written because States are still allowed to have post-election day processes, things like recounts, dispute processes for disputed votes, allegations of precinct-level shenanigans and etc. US Code is basically saying that the State legislature is allowed to develop a process to fill these spots.
During the 2000 Florida election controversy many in Florida’s legislature were saying that if the legal disputes of the votes got to the deadline for transmitting Florida’s electoral votes to the Congress, then the legislature was empowered to step in and select a slate of electors–to defend Florida’s representation in the process. While it was not done, I see no reason to assume Sec. 2 doesn’t allow for exactly this.
Sec. 4. of the same says that the State can fill “any vacancies” of electors after the fact by whatever manner is specified in State law.
Sec. 5. covers “controversies” as to the choosing of electors, and says that if the State has a law on the books prior to election day, that has some process for working out these controversies, then as long as this process is resolved by the deadline, the Congress will count the votes of whichever electors are selected through said process.
So I believe if Washington has some law that allows for removal of electors, or defines a “vacancy” in a certain way based on the behavior of the elector, I don’t see anything that would prevent Washington from executing said law. Michigan/Minnesota both have laws on the books that quite explicitly allow for removing faithless electors, because they have stated legally that “faithless electing” is legally the same as an elector resigning office, and it is up to the legislature to fill vacancies. I don’t know what Washington has, so it may not have any of this.
If we want to dig deeper into the issue, the real issue isn’t 3 USC Ch. 1, which is basically about the timing of elections and electoral college activities, but into the question of whether or not the States can set requirements on the electors, and violation of those requirements can justify removal from office.
This isn’t settled law, so anyone talking on this is talking purely on opinion. My opinion is that the States probably can regulate the behavior of the electors, and remove them from office for violating state proscribed rules.
The Congress under Article II gets to determine only the timing of choosing electors and the timing of the count of their votes, it doesn’t say any more on the matter–in fact it says the “manner” of selecting electors is left up to the State legislatures of the respective States. A lot of people argue electors cannot be regulated, I suspect, because most other “Federal offices” can’t be regulated by the States in this way. For example States cannot recall House members or Senators, and cannot regulate how these persons vote. The States also cannot alter the manner in which these offices are filled because the Constitution specifically states how these offices are to be filled.
But our Federal constitution is one of enumerated powers for the Federal government, the Federal government only has the powers laid out in the constitution. But it is not an enumerated set of powers for the States, in fact, the presumption is the States can do whatever the hell they want as long as they aren’t doing things the Constitution explicitly forbids the States to do (things that clash w/the supremacy clause or various other things.) So it’s obvious States cannot declare wars or sign foreign treaties, the States also have to largely follow the Bill of Rights after a hundred-odd year process of the Federal courts “incorporating” those unto the States. But I don’t see anything in the Constitution that says Michigan can’t write a law that says an elector who does x loses his office.
The Congress has proscribed a date for appointing electors, and a later date for the electors to cast their vote and send it to Congress. A State, in my reading, can pass a law requiring the elector to appear in the Statehouse 48 hours BEFORE the Congressional cutoff and make their vote then. It is the State government that transmits the vote, not the elector–the elector just certifies their vote. Required to make their selection before the deadline, if the elector votes in a way that violates State law, they can be deemed “resigned” and then replaced by the process the State has outlined. So functionally I think Michigan has found a pretty constitutional way to truly eliminate faithless electors, because it’s crafted to comply with all the timing requirements.
The only way in which it’d really be unconstitutional is if we presumed the Constitution explicitly forbids the States from regulating the behavior of the electors.
Ray v. Blair is the closest the Supreme Court has gotten to ruling on this (it narrowly ruled that it’s legal for a State to require electors to take a pledge, and to disqualify any who refuse, it doesn’t address removals for violating pledge rules after elections), and while one Justice dissented, arguing that history suggests electors were intended to be free to choose, the court did actually rule that electors are not Federal office holders. They instead hold a State office but carry out a “Federal function.”
A counterpoint to that dissent would be that while the Federalist papers and other sources do indicate the college was supposed to be a more or less independent decision body, we started selecting electors at the State level with an intention they “vote as expected” very, very early on. As in, some of the same dudes who wrote the constitution were involved in this process in which electors were lined up before the election day and expected to vote for a specific faction’s candidate. So the process of the legislature more or less expecting the electors to be functionaries who exercise no real judgment, is essentially as old as the Republic. This same sort of thing has often been persuasive in resolving issues where the strict legalese interpretation might suggest one thing, but practical experience suggests another. For example in cases that have sought to block prayer before openings of Congress on separation of church and state grounds, it’s been noted that the same people who actually wrote the first amendment opened their sessions with prayers. So while disallowing prayer at the open of a congressional session seems pretty obvious, it must not have been the intent of the writers of the first amendment or they’d have followed the rule themselves, right?
The other side of it is the political, on questions long left to the political process, the Supreme Court is almost never willing to intervene against the politicians, especially for vague technocratic reasons. Instead it may intervene when something long left up to politics is seen to deny basic rights for individuals under the constitution (like voters passing laws requiring schools to educate children of different races in different schools, or for certain persons to take poll exams or pay poll taxes.) Since there’s a pretty long history of electors being expected to obey the State legislature, I don’t know that the Supreme Court would want to intervene to strike down laws like the one in Michigan, this isn’t some grand constitutional question like in Roe v. Wade or Brown v. Board, but is more of a technocratic functional one, that has been handled a certain way basically forever.
So that’s my hunch anyway, that these laws probably aren’t unconstitutional.
Now, circumventing the timing that Congress sets out isn’t allowed, and Congress has made it clear in 3 USC Ch. 1, that whatever processes are in place for “clearing up” who is an elector or not after election day, the process had to be specified in legislation already on the books prior to the voting. So I do think if Washington has no removal process, it probably can’t create one on 11/9 and execute it.
I believe Ray v. Blair had to do with parties selecting the slate of electors, not states. As for changing the law after Election Day, Congress is allowed to specify the day for choosing Electors (II, 4). One could argue that changing the slate after the fact violates this unless previously written into law. And if this is true then it also means a states cannot replace an elector after Election Day if they decide to be faithless,
I think that Michigan’s law might be unconstitutional as well. It is (IMHO) a right for the Elector to vote the way they choose and considering someone who doesn’t vote the way the state wants them to as “resigned” and discounting the vote would be legally the same as having a voter that doesn’t vote the way you want as “choosing not to vote” and tearing up their ballot.
Thanks for the additional info, but clearly this is screwed up, within the rules or no. They’ve managed to put on the ballot “electors pledged to Hillary Clinton” who are actually not, and are actually hostile to the candidate that the people are voting for.
I recognize that sometimes the law – or any rigid process, really – can reach absurd conclusions that directly follow from the supporting premises, but that doesn’t excuse that people have the responsibility to fix such absurdities before they come to pass. This seems like one of those situations, where anyone who was familiar with the elector selecting process should have been able to see that it may be horribly screwed up. (And I would direct the same criticism at the Georgia Republican Party, who seem to have a similar issue on their hands with one elector.)
No, like I said–the section of U.S. Code that sets the timing, specifically grants the states the power to clear up “disputes” and fill “vacancies.” There’s no answer in code or constitutional law as to whether they can outright remove an elector for certain behaviors.
I think electors are legally allowed to vote however they want, but I also think the States can require they show up to fill out the documents for their vote 2 days before the Federal deadline, and if they fill it out with a name that’s not the one they’re pledged to, the State can remove them. This is what Michigan does. Because they are removing them from the office before the deadline, and before the vote is really cast (which is when it’s certified), sans specific prohibition, Michigan is presumed to be able to legislate on this or any other issue under the sun.
Now in a weird scenario where they couldn’t find a replacement willing to vote for the pledged person, that’d be a conundrum for them–but I think they can structure the in public balloting/certification process this way.
Which is EXACTLY what I said, is it not? :smack:
To make clear: I was NOT talking about a hypothetical way of pre-handling future disputes; I was responding to the assertion Richard Parker made that THIS dispute could be handled after the fact. 
So could an elector change their vote on the day prescribed by law? I would also think that if it ever went to SCOTUS they would be hard pressed to defend a law where a vote is coerced. “Vote this way or you’re fired”.
The Constitution says that the electors vote. If the electors can only fill out their ballot in one way or it’s not counted and they’re replaced by someone else who will fill it out that way, then they’re not actually voting.
I sympathize with these faithless elector laws, since they’re trying to remedy an absurdity in the Constitution. Unfortunately they don’t have the authority to do so.
Those are certainly compelling theories–but the Constitution doesn’t delineate the independence or lack thereof for electors. So I’d argue you’d be taking a liberal view of the constitution to imagine what you’re suggesting, that the electors vote must be unrestrained and a matter of their own conscience.
Article I, Section 5 says this:
So the constitution very explicitly delineates the independence of these congressman from any other element of government. Only congress can expel members, only congress can determine if someone who is attempting to occupy a seat is qualified or not, only congress can levy penalties and create rules of behavior for its members.
My argument is that the control of electors is left up to whatever is otherwise valid state law, and for any other state offices, states get to control the execution of those offices and the behaviors and qualifications for those offices. If the founders had intended otherwise, then they’d have enumerated rules for governance of their behavior the same way they did for House and Senate members. Absent any direct conflicts with the qualifications/rules in the constitution, we should presume it’s left up to the states because that is the inherent presumption behind anything not enumerated in our constitution. The Supreme Court has at least said electors are “State officers performing a Federal function”, and there is little question it is states that get to govern the behavior of State officers. The electors are not in any sense really part of the Federal government, they cast their votes at their State capitol, they never meet jointly, they were never intended to deliberate as a group, and from the earliest days they have been understood to be subject to state law. I can’t imagine the Supreme Court coming down on the other side of it, for my money. But a gain–just a guess here, I wouldn’t be surprised if the electoral college is abolished before the Supreme Court actually addressed the matter in a case.
By that logic, the Legislature could pass a law tonight requiring voters to vote for Trump or Clinton because there is nothing that requires a person to vote freely. I think the idea of an “elector” implies they can vote however they want.
I also feel that if the Legislatures had the right to control the vote of the electors then electors are meaningless. Why not just have the Legislatures decide how many votes each candidate gets and submit that to the President of the Senate?
Lastly, can you address Reed’s statement in Ray v. Blair that “However, even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Art. II, § 1, to vote as he may choose in the electoral college (emphasis added), it would not follow that the requirement of a pledge in the primary is unconstitutional.” Does it not imply that the electors may still be free to vote as they want despite faithless elector laws?
Yes, agreed–wasn’t clear to me on my first read through.
Well, the Presidency isn’t intended to be directly elected. It’s left up to the States to decide how the electors are chosen, so what you propose here isn’t the silly nonsensical thing you’re positing it to be. The first Presidential election 3/4ths of the electors, and their Presidential votes-by-proxy, were simply selected outright by the various States. Many of the remainder were in states that had “non-binding preference polls” where the legislature would consider the electorate’s opinion, or one where the legislature made a final selection after the voters cast an initial vote. It got more democratic basically every four years up until the 1840s when almost all the electors outside of South Carolina were more or less directly elected.
Now, what you actually said is “requiring voters to vote for Trump/Clinton”, but that’s pointless since the voters only get to vote for electoral college electors, or in some sense electoral college votes (since many States don’t even publish specific elector names any longer); voters don’t vote for President, electors do–and since the legislature can in fact just pick whoever they want with no regard for the electorate’s desires, they could functionally decide for the voters to vote for Trump or for Clinton.
None of this addresses whether the electors should properly just act as proxies for the will of the legislature, or if the legislature can bind them legally to do so.
Well I feel a lot of things, but I’m not sure I see an argument that tells me we should assume the States cannot control the actions of the electors. We have a limited, enumerated constitution. If something isn’t clearly prohibited of the States, there isn’t a constitutional ground to restrain State action.
I’d argue that segue by Reed isn’t particularly meaningful precedentially, and am dubious a majority of the Supreme Court would intercede with the long-established practice of deferring to the States on how they select and manage their electors.
Serious Question -
Are reliable and trustworthy electors a good thing?
Isn’t that possibility of a “finger on the scales” positive?
What if (for the sake of the argument) Trump wins, but then between election day and casting of EVs he is seen on live television raping three different women. Wouldn’t it then be a good thing that the electors had the possibility to choose someone else?
Personally, I would prefer impeachment to be the remedy for gross malfeasance of a president-elect, rather leaving the issue up to a couple hundred people who signed up for political nerd jury duty.
Maybe not the best turn of phrase in this case… (Reminds me of the Seinfeld episode, the one with that actress from Legends of the Fall, where he, ahem, acquires Knicks tickets from a…a…re-seller…)