Politics

'Faithless Elector' Could Upend American Politics... But Probably Won't

Electors can do what they want, but they've kind of always been able to do that.

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I mean, you only think you voted. (photo via Getty)

It’s always fun when people realize for the first time that their votes for President of the United States don’t really count. I was raised in a very political household, so I don’t remember a time “not” knowing that the President is not elected by popular vote, rather by the electoral college. But it wasn’t until late middle-school that I learned that the “electors” themselves were actual people who weren’t necessarily bound by the popular votes in their states.

It blew my mind. I think it blows everybody’s minds the first time they learn about it. When we vote for President we’re really voting for a slate of electors, and those electors then cast the “real” vote for the President? What if they choose somebody else? Can anybody stop them? What the hell kind of “democracy” are we running here? This Key & Peele sketch neatly sums up our entire ridiculous system.

http://www.cc.com/video-clips/gc87eq/key-and-peele-dunk-the-vote

A “faithless elector” overturning a Presidential election is a great plot for a novel. And, every four years or so, somebody usually brings up the possibility (usually on behalf of the candidate who is losing). In reality, they’re not really a thing. Most states have laws mandating that electors follow the popular vote of their state. The kinds of people who are chosen as “electors” are usually hardcore partisans who are going to follow the dictates of their party. And even if you find a few electors who are wiling to use their “power” to vote for whoever they want, getting enough of them together to actually flip the results of an entire election is more fantasy than reality.

Still, as a purely technical matter it could happen. And a ruling this week from the Tenth Circuit affirms that it’s entirely within an elector’s power to vote for whoever they like. In Baca v. Colorado Department of State, the court ruled that Colorado could not force its electors to vote according to the popular will of Colorado, despite having a law mandating just that. Instead, 10th Circuit Judge Carolyn B. McHugh (an Obama appointee) ruled that the Constitution inherently gives electors the right to choose, and that right is a federal right that cannot be impinged upon by the state.

From a certain point of view… THAT’S INSANE. Look at what happened in the instant case. Hillary Clinton carried the state of Colorado in 2016. Colorado therefor “elected” a slate of electors chosen by the Democratic Party. But Michael Baca, a Democrat because of course Democrats are freaking terrible at demanding discipline, decided not to vote for Clinton. Instead, he wrote in John Kasich. This guy didn’t vote for the person who won his state, didn’t vote for the person who won the popular vote, didn’t vote for the other person running for President, and instead voted for some other guy.

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And the Tenth Circuit says that’s entirely Constitutional for him to do so. And, not for nothing, but Judge McHugh is probably absolutely right about that. There just isn’t anything in the Constitution that requires Baca to do anything but vote for who he thinks should be President.

In our bitterly and closely divided country, it’s not hard to imagine a faithless elector or two banding together and swinging the outcome of a close Electoral College outcome.

But… it’s also not hard to “imagine” an intruder lurking outside your house. The mind does terrible things in the dark of night. Most likely though, that noise you heard was not an axe-murderer trying to climb into your bedroom, it was just a raccoon digging in your trash.

Donald Trump lost the popular vote but “won” the Electoral College in a very close election by 77 votes. To overturn the results of the election you’d have needed to get 78 Republican electors to vote their conscience (as if they had one) and vote for the popular vote winner. That’s not an actual thing that would happen. It’s possible to play with the map to produce an Electoral “tie” or only a one or two vote margin of Electoral victory. But, what we’ve seen is that states tend to move as a group so the kind of results you’d need to get to make that happen are unlikely. You’re just unlikely to get a candidate who loses Michigan, Wisconsin, and Pennsylvania, but wins Ohio and Florida despite losing Virginia yet hanging onto Iowa.

To “overturn” an election, you’d have to get a slate of electors chosen by the winning side to, en masse, not just to write-in a different candidate, but actively vote for the candidate from the other party. It’s possible, but not very plausible.

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Don’t get me wrong, the political science dork in me would love to see this happen. Faithless electors overturning an election is pretty much the only way I can see getting enough popular support to amend the Constitution to provide for direct, popular election for the President of the United States. It’s a change that should have been made 200 years ago. The only reason that the Electoral College was a thing in the first place is that lower-population states wanted to protect slavery and Jersey was like “yeah, that makes sense.” The only reason the Electoral College is still a thing is because… the Electoral College is a thing and everybody who might want to be President someday knows that they can’t piss off Iowa or Wisconsin or a bunch of low-pop flyover states that nobody would give a s**t about if not for the Electoral College. Small states know that the Electoral College over-represents them. They’ll never give that up, unless they figure out that Electors can completely ignore them altogether.

So I kind of hope they do, one day. It would be interesting if a bunch of Electors from Missouri decided “screw the people of Missouri, we’re voting our conscience.” Interesting in the way that a nuclear explosion is a fascinating example of the power stored in atoms, but interesting nonetheless.

But it probably won’t happen. And the Electoral College will probably trundle on, doing its part to ensure white-minority rule over the popular will of the country.

Faithless elector: A court ruling just changed how we pick our president [NBC News]

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