Is trying to get 37 faithless GOP electors futile, given the Electoral Count Act?

Politics & Elections
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Hamilton Electors point to Art.II for the proposition that “the Constitution does not forbid faithless electors.” That’s true, because Art.II says nothing about faithless electors whatsoever. Art.II is silent wrt faithless electors.

That [activity X] is not forbidden by the Constitution does NOT entail that Congress cannot ban [activity X] by statute.

The Constitution is silent to a million things. It’s accurate to say that “there’s no constitutional ban on marijuana possession.” But that doesn’t mean the Constitution enshrines marijuana possession as a right, such that Congress cannot legislate away one’s “right” to marijuana. And in fact, Congress has legislated against marijuana.

Same goes with faithless electors. The Constitution’s silence as to faithless electors does not, by itself, preclude Congress’s ECA.

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  1. Does it matter that the dissenters in Bush v Gore all point to the Electoral Count Act & Congress as the appropriate forum for EC disputes, NOT SCOTUS? Breyer & RBG thus presumed ECA’s constitutionality (as did the majority re another ECA provision).

Bush v. Gore, 531 US 98, 155 (2000) (Breyer dissent):

(Souter dissent at 129-30):

(RBG dissent at 143-44):

  1. Has longstanding (200+yrs?) historical practice of the EC being a mere formality has superseded the "HamiltonElectors’ " reliance on a single line (“requisite qualifications”) in Fed#68?

McPherson v. Blacker, 146 US 1, 27, 36 (1892):

Ray v. Blair, 343 U.S. 214, 224-31 (1952):

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That logic doesn’t quite hold up when the “activity” is a power granted by the Constitution, though. Do you suppose Congress could make it illegal for the President to receive ambassadors, or commissions officers of the United States? The Constitution doesn’t forbid their doing so, after all.

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See above post where Justices Ginsburg, Souter, & Breyer all say the Electoral Count Act & Congress is the appropriate way to handle disputes like this, not SCOTUS.

But also, the activity the Constitution grants is for the EC electors to cast their votes for POTUS & VP, not the more specific power to vote the elector’s conscience/as the elector wishes. The Constitution affirmatively grants the President the power to receive ambassadors (Zivotofsky v Kerry); it doesn’t affirmatively empower EC electors to vote their conscience unmoored from their states’ popular vote. The Constitution is merely silent as to faithless electors.

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One thing I learned today is that unusual EC procedures also happened as recently as 1960. I mean unusual in the sense of differing from popular vote plurality => all elector vote electors => all EC memebers must rubber stamp this result. It appears from my reading of Wiki article on 1960 election that Alabama gave voters 11 votes, one for each potential EC member. Perhaps that is not right, and they somehow divided the 11 electoral votes by county or something. At any rate, 5 of them were pledged, (and it was known that they were pledged ?) to Kennedy, but 6 of the winning candidates were know to be “Electors who will vote for whoever they feel like”. These 6 voted for Harry F. Byrd.

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Bush v Gore wasn’t a “dispute like this”, it didn’t concern the electors’ right to vote and have their votes be counted. Nor do 3 Justices comprise a Supreme Court opinion.

Can you show me where the Constitution moors the electors’ votes to the popular vote of their state?

It affirmatively empowers electors to “vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves”. Where are you seeing these additional qualifications?

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There are 2 questions:

  1. Can EC electors go faithless by voting their conscience?
  2. If EC electors go faithless, can Congress refuse to certify faithless votes under the ECA of 1887 (which has been used every 4 years since its passage).

If the answer to #2 is “Yes, Congress can under the ECA,” then it doesn’t matter whether EC electors are constitutionally entitled to go faithless, because a GOP-controlled Congress will correct/decertify faithless votes anyway.

Re the ECA:
Bush v Gore wasn’t a dispute like this, but even the dissenting liberal Justices said the proper resolution of what to do with EC votes (faithless, misspelled, what have you) lies with Congress & the ECA. The majority in Bush v Gore also cited to the ECA without even entertaining the thought that the ECA might be an unconstitutional restriction of EC electors’ discretion.

Pretty much all state party committees choose electors and ask them to sign a binding pledge to support the party’s nominee. That’s preliminary to the additional statutes that most (~30/50) states have that ban/void/criminalize faithless votes. Thus, the states moor electors to the popular vote victor in each state, not the Constitution. Article II allows the states to do this.

Your quotation to Article II is all there is, but Article II’s silence cuts both ways: it
does not preclude states or Congress (thru the ECA) from refusing to accept or allow faithless electors. That is, EC electors have no Article II “right” that overrides Congress’s decertification of faithless votes using the ECA.

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#1 - Yes
#2 - No

Different facts, different context. Bush v Gore concerned a dispute within a state; exactly the situation that led to the ECA giving Congress the power to resolve such disputes.

It did not concern electoral votes that Congress didn’t like.

Exactly, the states choose their electors, and presently all use a popular vote to choose them. This decision lies with the states, and is not compelled by the Constitution.

It precludes Congress from refusing to accept votes from bona fide electors. The Constitution tasks Congress with counting the votes, nothing more.

Election of the president is a power granted to the states, in the form of choosing electors to vote for the President. If Congress gives itself the power to reject votes from bona fide electors on the grounds that it is unhappy with the candidate who was voted for, then Congress now has the power to elect the President. Under your interpretation of the ECA, there’s no legal barrier to Congress, say, disallowing all votes for a given candidate.

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No, no way. This is not the proper approach. Many (on both sides actually) will see it as a direct theft of Democracy and a dangerous precedent.

There are three states I believe where some Democrats want to audit the votes over invalidated ballots and the narrowness of Trump’s wins there. That would be a much wiser approach if you’re looking to change the results of an election.

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How convenient for the “vote your conscience” camp.
So the ECA, a Reconstruction-era statute that was enacted to prevent another 1876 Hayes-Tilden disaster; used in 1969 by then-Representatives GHW Bush & Gerald Ford to object to a faithless Nixon elector who wrote in George Wallace; used in 2001 by Al Gore himself to gavel down his supporters’ objections because they lacked a Senator’s signature as required by the ECA; and used in 2005 when a Senator cosponsored an objection to Ohio’s EVs for Bush–is powerless to stop mass faithlessness. What’s your explanation for this?

I’m well aware that Bush v Gore (the case itself) didn’t concern faithless electors. I just pointed to Ginsburg & Breyer’s dissents as language indicating that they think the “not regularly given” portion of the ECA lets Congress resolve EC disputes. And if even the dissent is on record with that interpretation of the ECA, how do you think Roberts, Kennedy, Thomas, & Alito will rule?

Note also that, after the decision itself, when Congress convened to count the EVs in January 2001, Democratic Reps used the ECA to try to object to votes they didn’t like. It failed procedurally because the ECA requires at least 1 Senator to cosponsor their objections, so Gore overruled their objections procedurally when they didn’t have one. This shows that those Reps & Gore himself subscribe to the ECA.

Where in Article II does it preclude Congress from refusing to accept votes from bona fide electors? And if this is your position, then you must also believe that “bona fide” doesn’t require electors to be faithful to their pledges to their state parties. If both GOP-controlled chambers disagree with your interpretation, what then? You’re just going to tell Ryan & McConnell “too bad, you have to live with HRC”?

And you think a majority of the Supreme Court will pronounce "notwithstanding a 200yr tradition of electors voting as their states instruct, there’s this one overlooked phrase in Fed. 68 that requires Congress to step aside in the face of mass faithlessness? Even when, as pointed out above, at least 6 current justices are likely to uphold the “not regularly given” portion of the ECA?

The grounds wouldn’t be a freestanding “we’re unhappy.” It’s about faithlessness.
Under your interpretation of Art II, 270 rogue electors can vote in Joe the Plumber in an election between Abe Lincoln & George Washington.
At least caselaw & historical practice, by former Congressmen, Presidents, & Justices, backup the ECA; there’s been no endorsement whatsoever of “electors can do whatever they want” except by some 25yo who fell ass backwards into the role of an EC elector.

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For the record, I favor the abolition of the Electoral College, in favor of a nationwide popular vote. Until and unless that (or some other EC reform) happens, though, we’re stuck with the laws we have, shitty as they might be.

You know that the 1876 disputes had nothing to do with faithless electors, right? That this wasn’t the problem the ECA was created to address?

Further - has a single electoral vote ever been disallowed by Congress? I fail to see the weight of precedent you’re claiming for yourself here.

As for how I explain this - faithlessness of electors wasn’t conceived of when the Constitution was written, because the way the states currently select electors wasn’t conceived of.

Not all disputes are alike.

And had the objection not failed, we might have had an actual case or controversy to bring before SCOTUS. Barring that, speculation over how they might rule are just that - speculation.

“The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President…”

That’s it. The votes shall be counted. Now, Article II also lays out requirements for electors:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

If, say, a state sent an elector who was also a Senator to vote, Congress could plausibly refuse to count their vote, because that’s a requirement in the Constitution. Voting according to a pledge your state required is not a requirement in the Constitution. Therefore, a bona fide elector is one who meets the qualifications, and was duly selected by his or her state - nothing more.

As above, the requirements for an elector are specified in the Constitution.

I’d tell them to support an amendment to the Constitution that reformed or eliminated the electoral college.

I think the SCOTUS would uphold the law as plainly given in the Constitution, yes.

Uh, that’s just “we’re unhappy with the way this elector voted”.

Again, there’s no precedent for Congress refusing to count electoral votes. The ECA specifies how and when they are to be counted, but it wasn’t created to overrule the states’ electors, and it’s never been used for that purpose.

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I’d also like to ask: what are the limits to Congress’ power to discard electoral votes? Given that “faithlessness” appears nowhere in the Constitution or the ECA, when do you believe Congress can or cannot reject a vote?

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Not only is it unlikely to succeed, but it’s also revealing intellectual bankruptcy of the political left and the democratic party.

There are times when you lose elections that you, by rights and by logic, ought to win. Those are defeats, but beyond that, those also fall under the category of lessons to be learned.

Democrats need to embrace their defeat. They need to accept that they lost, and they need to understand why it happened. We already have some democratic electors on record as saying they wouldn’t vote for HRC so we would likely need more than 37 delegates – more like 40 (minimum).

And even if somehow the delegates revolt and select Clinton, we would still be living in a bitterly divided country, with one half feeling like they got screwed by the system.

The fact is, this was a winnable race for Clinton. She lost because she sucks as a candidate. Couldn’t beat a black guy with a funny name. Could barely beat a Brooklynite socialist Jew. And lost to arguably the worst nominee in political history. All of this happened while the Clintons probably received more than half a BILLION in total fundraising over a 10-year period. Seriously, how the fuck does someone with a household name, and with half a BIL, lose to these kinds of candidates? It just wasn’t meant to be. Using renegade delegates to somehow steal the victory for her isn’t going to work.

Accept defeat. Embrace it. Work toward the future.

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Congress used a precursor to the ECA to turn away all of Louisiana & Arkansas’s EVs in 1872 because of widespread voter intimidation. I guess they weren’t persuaded by the view that Art. II only allows them to “count” the votes.

Democratic Reps also invoked the ECA in 2001 and 2005 to complain about FL & OH, respectively. The 2001 objection lacked a Senator’s signature, so Al Gore gaveled it down. The 2005 one got Sen. Barbara Boxer to sign it, but the objection got defeated by overwhelming margins (74-1 in the Senate, lots of abstentions because many Congressmen thought it was a waste of time).

So you admit that the infallible “framers” didn’t have anything to say about faithlessness. Neither “it’s absolutely allowed” nor “it’s absolutely banned.”

You’re being obtuse here, of course not all disputes are alike. I’m not saying Trump v Clinton is a replay of the Bush v Gore litigation. I’m saying all of the opinions in Bush v Gore (majority and dissenting) saw no problem with the “regularly given” language of the ECA; in fact all the dissenters said Congress, not SCOTUS, was the appropriate forum.

If the question is, what do Ginsburg and Breyer think of the validity of the 3 USC 15 (the ECA’s “regularly given” section), and I quote their dissents that flatly say “SCOTUS should’ve never gotten involved in this case, this is for Congress to decide under 3 USC 15,” your response is that I’m speculating as to Ginsburg & Breyer’s views on the ECA?

What you don’t get is that there’s more to the Constitution than the text alone. Long-standing historical practices and understandings sometimes dictate a certain outcome that the Constitution’s text doesn’t address.

Nothing in Article III’s text empowered SCOTUS to review state courts’ decisions, but SCOTUS overruled Florida’s Supreme Court anyway. Article II doesn’t say anything about pledges to party loyalty in the party primaries, but SCOTUS upheld those pledges in Ray v. Blair (1952). The framers didn’t even anticipate parties or primaries, but SCOTUS read the Constitution’s silence as to party pledges as the absence of a ban on party pledges.

It’s not something the Constitution itself requires, but the Constitution does empower states to set the qualifications for electors (e.g., age, residence, party loyalty). If you’re saying all such requirements are unconstitutional simply because they don’t appear in the Constitution itself, then we could have a 7 year old who lives in Alaska arguing that he’s as qualified to be a Florida elector as anyone.

Statutes can require more than the Constitution. The Constitution is a floor, not a ceiling. The Constitution doesn’t require men to sign up for selective service, but a statute does.

If the basis for your prediction of what SCOTUS would uphold or not uphold ends at your quotation of the Constitution’s text and nothing more, then I have some news for you. Your position is like people who argued in Brown v Board something like “we’ve looked at the text of the Constitution, and it doesn’t say anything about segregated schools. Thus it’s allowed.”

That’s just not the political reality. SCOTUS in the 1950s would’ve looked horrible endorsing segregation because times had changed since the 1890s, when the sociopolitical environment of the time didn’t make it embarrassing to say “separate but equal.”

Bush v Gore was ugly enough on its own, but do you really think today’s SCOTUS would 1) invalidate a Reconstruction-era statute (“regularly given”) that’s been in use for 130+ years and 2) say to the 100million+ people who vote every 4 years "yea sorry, Article II lets 538 no-names vote in Joe the Plumber?

The ECA hasn’t generated much controversy or precedent in the faithless elector context because no election was close enough; Congress (including Bush & Ford) objected to a faithless Nixon elector who voted for George Wallace, but, like in 2005, most people in Congress just half-assed the ECA because Nixon had such a big lead that losing 1 or 2 faithless electors was no big deal. Nothing was in the balance.

But this time, if 37+ electors go faithless and install HRC when Obama & Clinton have been urging a smooth transition, you’re kidding yourself if you think Ryan & McConnell’s Congress will just throw up their hands and go “welp, the HamiltonElector geniuses, assisted by the scholarly ‘Human Action,’ have concluded that the ECA does not allow us to decertify the faithless votes.”

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So, that’s a “no”, then.

Infallible? Not by a mile.

They said that electors chosen by the states voted for the president, and that Congress counted the votes. Therefore, “faithlessness” has no bearing on Congress’ role in the process.

You’re speculating as to how SCOTUS as a whole would rule on a materially different case with different facts. Again, the 1876 election, like the 2000 election, had intrastate disputes about the election. Faithless electors are an unrelated issue.

I understand that there are multiple ways to interpret the law. Did you want me to give interpretations I disagree with, to make you happy?

That’s right, SCOTUS can do whatever it wants, it’s called the Supreme Court for a reason.

Pledges are a very poor analogy to Congress choosing the President instead of the state-chosen electors, which is what you’re proposing. One concerns the fundamental separation of powers, the other falls within the states’ purview of choosing how their electors are selected.

Uh, I already said that the states get to decide how their electors are chosen. That’s because the states, via electors, vote for the president.

Once more: the states, via electors, vote for the president. Not Congress. The states. Not Congress, but the states.

If there’s some way, beyond an amendment, to keep faithless electors’ votes from counting, it lies with the states, not Congress.

The requirements for an elector are indeed a floor. The states can add their own requirements on top of them, Congress can’t. Do you believe that, say, Congress could reject the votes of electors without college degrees, by passing a law to that effect?

14th Amendment. Constitution’s text, and nothing more.

Oh, I’m sure Congress would try to block HRC’s election. But you asked about SCOTUS, remember? And you’re dreaming if you think SCOTUS will transfer the power to elect the President from the states to Congress. Which, again, is what you are proposing.

And you never answered my question about the limits, if any, of Congress’ power to throw out electoral votes.

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You could just shut the fuck up and accept the result of the election. Another angry leftie who wants to overthrow democracy so his race can be wiped out.

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Damn, you’re on to the Democratic agenda of white genocide! Dammit, guys, which one of you spilled the beans? Was it you, Curious2016?

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Please, no hooey about overturning the will of the people. That cap’s already over the wall.

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Separation of powers concerns indeed counsel against transferring the power to elect the POTUS to Congress (although this is mitigated somewhat by the fact that one party would have to control -both- chambers).

Note that there’s no “Separation of Powers” clause in the Constitution’s text, but that is one value the Constitution enshrines.

So is democracy.

Just as I’m dreaming SCOTUS will allow Congresss to pick the POTUS, so are the “HamiltonElectors” who think SCOTUS will bless their argument that 538 nobodies have absolute discretion to disregard 120+ million voters.

You think all the flattery about the “right to vote” will be served by a SCOTUS opinion that reads: “don’t worry if the State disenfranchises you from entering the voting booth, you can always write apocalyptic letters to 538 electors instead”?

SCOTUS can resolve this by upholding the requirement that electors be faithful.
That way, it doesn’t transfer the franchise from either 1) Congress or 2) 538 nobodies. But if it had to choose between those 2 extremes, Congress is still better because they’re more accountable than 538 nobodies.

What limits are there to EC electors’ discretion?

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The whole document details the separation of powers; that’s almost all it is.

Eh, kinda-sorta. The government established by the Constitution is only quasi-democratic.

Well, the originalists & textualists have the law on their side, so there is that. As stated, though, SCOTUS can do whatever they want.

I’d prefer that to blatantly breaking the law. The solution to bad laws is to change them, not pretend they don’t exist. We’re allegedly a nation of laws, after all.

Also, note that Congress can remove a President at any time; if the electors choose Joe the Plumber, expect impeachment to begin January 20th.

Or, SCOTUS upholds the law, and people realize what the electoral college actually is and how it operates, and support an amendment to change it.

How would your proposal work, exactly? There is no requirement that electors be faithful.

Per the Constitution, none. We should change this, by eliminating the EC.