Last month, the Supreme Court heard the oral arguments in a case challenging the state laws that bind: Electoral College electors to vote for the presidential candidate they are selected to support. The case was brought in response to the four in 2016 electors, three from Washington and one from Colorado — who tried to vote against their state’s popular vote winner, and, in the case of the Washington dc electors, faced the purposes for having broken their pledges.
These so-called “faithless electors” have been a long feature of the American presidential election, but it’s possible that the Supreme Court could shake up the Electoral College system is, striking down state laws that try to guarantee electors’ votes, by replacing or punishing those who don’t vote as they promised to. Justice Ruth Bader Ginsburg said of the overall lack of enforcement of the electors’ pledge to vote for the winner of their state’s troubled in her, saying, “I made a promise to do something, but that day is unenforceable.” But Justice Samuel Alito said that overturning the state’s laws could lead to chaos, where the popular vote is close.”
There is some truth to that. In a system where close to a national popular vote can produce a close-but-different to the Electoral College in the outcome, the head of the electors refusing to uphold their pledges could indeed sow the chaos. There is already controversy surrounding the Electoral College and its election of George W. Bush in 2000, and the Donald Trump in 2016 — neither won the popular vote. Adding in a few faithless electors, who could flip the outcome of the election might pose a significant threat to the Electoral College”s continued legitimacy. Look at the history of presidential elections is not exactly littered with faithless electors.
In fact, during the presidential elections of the 20th century just a 15-electors broke their pledge and voted for someone other than their party”s nominee. That means, on average, there was less than one faithless elector per election during this period, and none of them altered the course of any one election. This trend continued into the 21st century as well, with just one faithless elector in the 2000 presidential election, and one in 2004; however, in the 2016 presidential election, there was a sharp uptick. Be electors from the six different states that attempted to break ranks. That’s still not enough to have changed the outcome of the 2016 election, but it is nonetheless a significant jump in the number of defections.
So perhaps this is a sign that something has changed in our era of hyper-partisan politics, and the faithless electors, will become more common. Then again, Hillary Clinton, and Trump, both faced a long, drawn-out nomination battles, and they were the two of the most unpopular nominees in the modern history. Those alone, brazil could have been the impetus behind some of the faithless electors’ move in by the end of 2016.
But let’s say the Supreme Court does rule in favor of the 2016 electors, and says faithless electors can’t be penalized. Would chaos ensue?
First of all, not every state, you have laws in place to hold the Electoral College electors to their pledges. In fact, it’s just 29 states and the District of Columbia had any type of rule on the books in 2016. The rules are inconsistent, too. In some states, like Washington, then the penalty is levied, and all of the faithless electors were made to pay a $1,000 fine. And in other states, like Michigan, the votes of faithless electors are not counted; instead, the electors are replaced with someone who will vote for the nominee. That provision, obviously you have more teeth to it, but again, many states don’t have any such provisions at all, and yet there aren’t countless faithless electors.
And that may be because the state parties are already selecting activists who are likely to be loyal to their presidential nominee, so that electors are motivated to vote for the instructed even in the law-punishing or removing them if they don’t-t. But the national parties are not powerless in this process. The Democratic National Committee, and in particular, ramped up its efforts to fend off the faithless electors after the 2016 olympics, adding the new requirement to its the convention rules if the state parties’ delegate selection plans not only include their process for selecting electors, but also the steps the state will take to ensure that those electors to vote for the Democratic nominee. Those measures-like-the-rest-of-the-delegate-selection process, had to be approved by the Democratic National Committee”s Rules and Bylaws Committee, as part of the delegate selection plan.
The voter is the selection process still differs from state to state, but ultimately, it’s fairly centralized under the party, which helps ensure faithful electors) are selected. In states like Florida and Pennsylvania, for example, the presidential nominee and their campaign select the Democratic electors. And in the states with the smaller Electoral College delegations, like the states of Oregon and Utah state, the party (s) like the state, the party, the president, the vice-chairman and the treasurer automatically serves up all of the electors from those states. There are, however, a number of states where the voter’s selection process is a bit more free-range. And, perhaps unsurprisingly, it was the states that selected their electors by more decentralized means that had faithless electors in 2016.
The six states where an a voter tried to cast a faithless vote for in 2016 — Colorado, Hawaii, Maine, Minnesota, Texas, and Washington — all selected electors, using the congressional district and state conventions, which don’t receive as much oversight on the other, selection methods, and can be dominated by the supporters of the candidates other than the eventual nominee. And unlike the process for selecting delegates to the Democratic convention, and the elector-selection process does not give the applicant the right to review by electors.
In Washington, where the faithless elector problem was-the-most-in as a guideline for 2016 — there were four defectors — state Democrats, made the process much more centralized for 2020, moving the selection process from the state and congressional district conventions to the party”s state central committee. But 17 of the state party, will still select electors via the conventions in 2020, with a total of 154 electors at at at at at stake in those meetings. And only seven of these 17 states worth of 53 electors) voted Democratic in 2016. So it’s possible that if there were enough defections, and the vote was close, it could matter.
That said, a few electors chosen in this way are actually faithless. Few electors are faithless, period. It’s true that we don’t know if the 2016 has signaled a change in the with norms around ” faithless electors, and if, therefore, we might see more defections in the year 2020. But the bottom line is that even if the Supreme Court were to strike down state-level laws, the combination is unlikely to erupt. The guidelines put in place by the parties to ensure the most electors are faithful serves in the assembly.
