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‘Faithless electors’: What will happen if more decide not to vote for Trump?

A high-powered legal team is working hard to resurrect the right of electors to use their own judgment, and they are in talks with several who want an alternative to voting for Donald Trump.

President-elect Donald Trump speaking at a USA Thank You Tour event at Crown Coliseum in Fayetteville, North Carolina, on Tuesday.
REUTERS/Shannon Stapleton

Christopher Suprun, a Republican elector from Dallas, Texas (and by “elector” we mean here one of the actual 538 people who will cast electoral votes in the real, final, constitutional step in the process of choosing a new president) announced Monday in an op-ed in the New York Times that he will not cast his electoral vote for Donald Trump.

Even though Suprun was chosen as an elector by the Texas Republican Party in the clear expectation that he would vote for the Republican nominee, Suprun considers Trump unqualified and unfit to be president. And he is riding a never-Trump boomlet that wants to argue that the last, best hope to prevent his election is to get electors, in states that Trump carried, to refuse to vote for him in the (sort of nonexistent) Electoral College.

The legal argument is that the weird job of presidential elector was put into the Constitution to empower a group of people to use their judgment about who was fit to be president, not just to rubber stamp the result of the popular vote in their home state.

As a historical matter of what the framers of the Constitution had in mind, he’s right, although that understanding of the role of electors went out of fashion long ago.

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So far as I know, Suprun is the only elector to so far make a public announcement of his intention to become a “faithless elector,” which is the traditional term for electors who don’t vote the way they are supposed to, according to the Electoral College system as evolved.

But, given the Trump situation, there are other electors who feel as Suprun does, and who are considering acting on that feeling. The “faithless elector” deal has happened before, although never in a way that changed the outcome of an election, and I’m highly skeptical it will happen this time. But a great many unexpected things have happened this year.

The situation is further complicated because some states have enacted laws binding the electors to vote for the nominee of their party, if that party wins the state. Others have not.

306 electors are pledged to Trump

Pending the outcome of several recounts in fairly close states, 306 electors are pledged to vote for Trump. It takes 270 electoral votes to win the presidency via the Electoral College. In the (still, to me, unlikely) event that enough other Republican electors were to follow Suprun’s example to pull Trump’s total below 270, we would have one heck of a constitutional crisis and possibly blood in the streets.

Lawrence Lessig
Lawrence Lessig

But a high-powered legal team is working hard to resurrect the right of electors to use their own judgment, and they are in talks with several who want an alternative to voting for Trump. Those electors are calling themselves “Hamilton Electors,” which is a reference to Alexander Hamilton, one of the framers of the Constitution and the author of one of the “Federalist Papers” that explained the framers’ thinking in turning the choice of the president over to a group of electors.

The leading member of the legal team is Harvard law professor Lawrence Lessig, holder of an endowed chair and a progressive activist. Lessig, by the way, was briefly an announced candidate for the Democratic presidential nomination last year, but ended his campaign before the Iowa caucuses. Here’s Lessig’s piece, describing some elements of the argument he wants to make and offering his assistance to any electors who want to exercise their freedom to vote their conscience.

Laurence Tribe, also a Harvard law professor and perhaps the most prominent of contemporary liberal legal lions, tweeted on Monday that he will provide pro bono (free of charge) legal representation to any elector who follows Suprun’s lead in asserting the right to exercise their own judgment in casting their electoral vote.  A California law firm is offering its free assistance to the Hamiltonians, those wishing to make the argument, and a couple of Democratic electors from Colorado have filed suit making the argument, which is weird because Clinton won Colorado.

I believe you’ll be seeing more news about this every day for a while and, whichever outcome you might be hoping for, you can decide for yourself whether it has any chance.

Laurence Tribe
Laurence Tribe

I am a long-time critic of the Electoral College. Here is my piece summarizing 10 reason why it’s a bad system, of which number one is that it creates the possibility that the loser of the popular vote will win the election, as happened this year for the fifth time in U.S. history. In the current instance, the margin of Hillary Clinton’s popular vote victory, currently 2.65 million votes, is by far the largest margin ever in these popular-vote-winner-electoral-vote-loser scenarios. Looking at the demographic trends, there is reason to believe that these loser-winner scenarios will become more common in the future.

But the Electoral College system is in the Constitution and it would be unimaginably hard to get it out, given the high bar for amendments, the current partisan and ideological polarization, and the likelihood that the Electoral College system will continue to favor Republican nominees. You probably won’t get a two-thirds vote of both houses of Congress, followed by ratification by the legislatures of three-fourths of the states, to change the Constitution in a way that Republicans would believe harms their chances of winning future presidential election.

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So my purpose here is to try to put the Lessig/Suprun/Tribe-and-others’ challenge into historical/constitutional perspective and then watch with interest to see how far it goes.

Divining the framers’ intentions

The idea that the key to interpreting the Constitution is to divine what the framers intended gets more and more ludicrous with the passage of time. Many of the framers were great men (all men, of course, and all white), but many of their ideas cannot be reconciled with modern reality. Their vision of the role of the presidential elector is an excellent example.

In fact, when the framers invented the role of presidential elector, they clearly did intend for the electors to be able to vote based on their own judgment of who would be the best president. That function of the role of presidential elector has obviously withered over time. But the constitutional language has not changed materially.

If you believe — as we are all taught to believe no matter how absurd it becomes as the centuries since the founding go by — that the correct way to interpret constitutional language is to investigate what the language was intended to mean at the time it was written and ratified, then Suprun and Lessig have a pretty strong argument. In historical terms. It’s hard to dispute that the men who created the job of presidential elector meant for those electors to exercise their own judgment, which is what Suprun proposes to do. Here’s the historical argument for that proposition:

The framers created an office of president, for various reasons. It was an office with no serious precedent at the time, other than some similarity to kings. But after recently overthrowing the rule of a king and establishing a democracy (really, 13 separate loosely confederated democracies before 1789), the idea of concentrating so much power in a single individual seemed fraught with peril and the method of choosing presidents was highly problematic.

The framers favored some democracy, but were leery of too much of it. In their system, there would be four power centers in the new national government: the House, the Senate, the president and the Supreme Court. Only one of those (the House) would be subject to direct election (and even then, largely limited to white, male property owners). All of the other big federal jobs would be filled by means of indirect democracy. In the case of the presidency, they came up with the Electoral College (which, by the way, is never called a “college” in the Constitution. And it’s not a college. But the weird usage has become common over the years.)

There were no national political parties in 1787-89, no national media, no tradition of candidates traipsing around the then-much-smaller country, sharing their vision and begging for votes. Gentlemen like George Washington would have deemed it highly improper to say or do anything, at least publicly, to advance their own election. (Presidential candidates didn’t start actively campaigning for the job until roughly the William Jennings Bryan candidacy of 1896.)

Even if they had considered holding a national election in the 1780s, the residents of the states knew little about potential presidents from other states, they had little means of learning about them, and they weren’t organized into national political parties that would guide their choice. They could have arranged for the president to be chosen by the Congress, but the framers were interested in checks and balances across branches.

After Washington, who?

Everyone knew that the first president, no matter what method of appointment or election was used, would be Gen. George Washington, the almost universally admired hero of the revolution and the presiding officer over the Constitutional Convention itself. But, in this era before national parties and national media, would there ever again be men so well known and trusted in all 13 (going on 50) states? The framers had no way of knowing.

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So they came up with a crazy-sounding plan. In each state, the Legislature would appoint a group of “electors,” using whatever method they liked. There was certainly no requirement that the matter be put to a vote of the population.

The only job of the electors was to elect a president. They would meet, separately in each state, and vote for two men (one of whom must be from a state different from their own) who they thought would make a good president.

If anyone was named on a majority of ballots, he would become president, and the runner-up would become vice president. If, after the inevitable end of the George Washington era, no one was named on a majority of ballots, the names of the top five finishers would be forwarded to the House of Representatives, which would choose from among them on – this is fairly unbelievable to modern ears – a one-state, one-vote basis. So the smallest state had as much say as the biggest. That, by the way, is still in the Constitution. If the election is thrown into the House, the single House member from Wyoming, Cynthia Lummis (until Jan. 3, when she will be replaced by Liz Cheney — yes, that Liz Cheney) — would have a voice equal to the combined 53 House members from California.

Still, if the “Hamilton Electors” succeed in pulling Trump below 270 electoral votes, the choice of a president will be thrown into the House.

Back in the 1780s, the state societies were so dominant, compared to the national whole, that the framers felt they had to force the electors to give at least one of their two votes to someone from another state. Later, when the 12th Amendment was adopted to clarify that electors should vote for one person for president and a second person for vice president, the system still forbade any elector to vote for two men from their own state.

In fact, in the first two presidential elections, while every elector included Washington in his list of two, the second vote was scattered among 11 men, which underscores that this was occurring in a time when there were no party tickets.

On the second round, in 1792, the electors (132 of them) all voted for a second Washington term, but their second votes were scattered among four recipients. The party system was starting to emerge, which led to the 12th Amendment system of partisan ticket voting.

That was the last major constitutional change in the system, but the amendment did nothing to specify that electors were required to vote for their party’s ticket nor that they had to vote for the ticket that carried the popular vote in their state.

The Constitution still says nothing that requires electors to do anything other than vote for a candidate for president and another for vice president, nor is there any federal law that binds electors to the outcome of the popular vote in their home states. If it was that automatic, why would you even need electors?

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(In fact, if you can stand one last bit of ancient U.S. political history which I find amazing whenever I remember it, many states didn’t hold popular votes at all for president in the early years, nor were they, nor are they, constitutionally required to do so now. The states gradually got on the let-the-voters-vote bandwagon, but New York and Georgia, both them among the original 13 states, didn’t hold a popular vote for president until 1828. Even more amazing, South Carolina, also an original state, never held a presidential popular vote until 1868, the 21st presidential election. It’s unimaginable that any state now would do away with the presidential popular vote, but it would be constitutional.)

Over the years, the modern system took hold. Specifically the electors were appointed by their parties and were expected (or, in many cases, bound by state law) to vote for their party’s ticket if their party carried the plurality of votes in their state.

Constitution never amended on this point

Still, the Constitution was not amended to make this a requirement, which sets things up for Suprun, Lessig, Tribe and the Hamiltonians to make their argument that the Constitution still means what it meant when it was written and created the position of presidential “elector.”

If that’s the case, we’ll have to see how many electors are interested in following Suprun’s example.

If that number is big enough to pull Donald Trump below the magic 270 electoral vote number, and assuming that these Republican electors have not all switched their votes to Hillary Clinton, then the election would be thrown into the House of Representatives. That hasn’t happened since 1824 (and the House in that case, chose John Quincy Adams, the runner-up in both the popular and electoral vote).

I’ve run on too long and should stop. These scenarios seem so unlikely. But there’s one last detail you need to know to think through this crazy possibility of the faithless electors pulling Trump below 270 electoral votes.

If it happens that the choice of the president is thrown into the House, and members of the House would have to vote for one of the top three finishers in the electoral vote. Three. It’s in the Constitution and, of course, unless we get a 269-269 tie, at least three candidates must get at least one vote, and the House members would have to choose from one of the three. How do we get from two to three?

First of all, the electors are not constitutionally limited to voting for either nominee nor for anyone who ran for president. If you take the Hamiltonian argument seriously, they can vote for any natural-born citizen who they think would be a good president.

Of course, if there were enough faithless electors to deny Trump 270 electoral votes, and all of them switched to Clinton, she would be elected (perhaps after the blood in the streets part and assuming the Constitution means what it says).

But the reporting on the Lessig movement suggests that that’s not the way things are heading.

Any native-born citizen over 35

The electors are not constitutionally required to vote for either major party nominee. They can vote for any native-born citizen age 35 or older. If enough “faithless electors” unite behind someone else to prevent any candidate from reaching 270 — even if that third candidate got only a few electoral votes – then all three names would be forwarded to the House as possible presidents.

Who might such a third candidate be? The public speculation has mentioned Gov. John Kasich of Ohio, a moderate who might even attract support from some Democrats, if it were clear that Hillary Clinton couldn’t be elected.

If it were to get to the point where three names are forwarded from the Electoral College to the U.S. House, it would act on a one-state, one-vote basis.

When someone gets the vote of 26 House delegations, that’s your new president. If they keep trying, but can’t reach a conclusion by inauguration Day, the vice president is sworn in as acting president. (Under this scenario, the choice of the vice president was thrown into the Senate and is less likely to reach deadlock, since only the top two finishers for veep are forwarded to the Senate.)

Most states have Republican majorities in their House delegations. But House members from both parties get to vote. If things reached this unlikely scenario, would the Republicans members of the House stick together and decide to elect Trump  — who is, after all, their party’s nominee and who carried almost all states with majority Republican House delegations? They would have the option of doing that, and it seems quite likely to me that, even if they could, they wouldn’t set aside their party’s nominating process.

But it’s possible to imagine deals being made between Democrats and anti-Trump Republicans to throw the state’s support to the third-place electoral vote finisher.

Or might some of them think about a candidate who cuts such a moderate figure that he or she could attract support from both parties, maybe even some Democrats, if they have given up on Clinton’s chances? I said above that John Kasich’s name has been mentioned. In his Times op-ed piece announcing his intention to go “faithless,” which I linked to at the top of this filibuster, Texas Elector Suprun wrote:

I believe electors should unify behind a Republican alternative, an honorable and qualified man or woman such as Gov. John Kasich of Ohio. I pray my fellow electors will do their job and join with me in discovering who that person should be.

Politico, which has been following the faithless elector story closely, reported on Monday that Kasich is under discussion as a recipient of support from those involved in this effort. On Tuesday it reported that Kasich asked electors to not vote for him.

By the way, the electors are scheduled to meet in their respective states and cast their ballots on Dec. 19.