Faithless Electors

The presidential election is the day after tomorrow.   We may have thought we already went through this last month.   But as most people know, the actual winners on November 8 did not include Donald Trump.  Instead, they were 538 mostly anonymous people who were chosen as electors.  It is they who will vote on Monday and will, most probably, choose the next president.

Although they are known collectively as the "Electoral College,"  they never actually meet in one place.  In accordance with constitutional requirements, the electors from each state meet in their respective state capitals.  The candidate with the most votes becomes president, providing he receives a majority.  If no one gets 270 votes the House of Representatives selects from the top three vote-getters.

The electors are usually an afterthought as they tend to be party loyalists who reliably cast their votes for their party's designated candidate.  This year, however, they are receiving far more attention than usual for two reasons.  One is that this year the majority of electors are pledged to the candidate who got the second greatest number of popular votes.  This is not unprecedented.  In fact it has happened several times before, most recently in 2000.  but even that election did not result in the paroxysms and doomsaying that have occasioned Donald Trump's presumptive election to the White House.  That's because Trump is a uniquely controversial and polarizing candidate.

Partisans of the losing candidate, Hillary Clinton, have imagined that the electoral college gives them a second shot at defeating Donald Trump by convincing Republican electors, theoretically committed to voting for Trump, to vote for someone else.  If 37 Republican electors vote for a different candidate, say Mitt Romney, they deny Trump a majority and throw the election to the House.  Even if such an unlikely turn of events took place, Trump would almost certainly still be elected.  If Clinton's followers want to install her at 1600 Pennsylvania Avenue, they would need to convince those 37 electors to cast their votes for her.  The likelihood of that taking place is small to the point of non-existent.

Unconfirmed reports have been circulating of electors' toying with the idea of freelancing their votes.  Most of these electors are nameless and, in fact, include more Clinton electors than Trump electors.  One potential "faithless elector" who has chosen to come forward is Chris Suprun, a Texas elector who may or may not have exaggerated his role as a 9/11 first responder.  Suprun has become the focal point of a debate over how much autonomy electors have in discharging their constitutional function.

Most states have enacted laws that purport to impose legal sanctions on electors that vote for someone other than their pledged candidate.  Internet comment sections are swelling with outraged yahoos demanding imprisonment for faithless electors and attainting them as traitors.

While the laws binding electors exist, no elector has ever been penalized or replaced even though 108 of them have gone rogue.  No faithless elector or any combination of them has ever changed an election result so no state has bothered to take legal action and thus these laws have never been fully vetted by the courts.

My own opinion is that laws binding electors are unconstitutional.  I'm open to arguments to the contrary but it seems to me that an elector is a constitutional officer and no state government can constrain his performance any more that it can that of a representative or senator.