An Election Hypothetical.

[The Romulan Republic]

There's a possibility I've been thinking about more and more lately regarding 2020, and which I don't think is getting nearly enough attention.

As most of you probably know, the President of the United States is not directly elected by the popular vote. Instead, each state votes for "Electors" who then vote for the President, an anachronism set up in the days before instant communication, supposedly as a safeguard against the Unwashed Masses picking a demagogue (see 2016 for how opposite that is to reality), but also to increase the voting power of small states (actually swing states, regardless of size) and, at the time, slave states.

Now, it is generally expected that the Electors will vote the way their state voted, and some states IIRC have laws against faithless Electors. However, there is no Constitutional prohibition to being a faithless Elector. In fact, there were a number of faithless Electors in 2016, including votes in Hillary, Bernie, Trump, and others' favor, though not nearly enough to change the result.

As 2020 nears, everyone is talking about who will win the vote. Some of the more alarmist (or, depending on your perspective, the more savvy) people are speculating about the possibility of Trump (who faces indictment if removed from office before the statute of limitations on his obstruction and campaign finance violations runs out) refusing to leave office, or Russia rigging the vote. A few have entertained more extreme scenarios of Trump attempting to retain power by force. Notably, both House Speaker Nancy Pelosi and Trump's former personal lawyer Michael Cohen have raised the possibility of their not being a peaceful transition of power. But almost nobody is talking about the very simple, obvious, and entirely legal way by which Trump could steal the election.

Suppose that, on Election night, the result comes in: a clear, unambiguous win for the Democrats. Given Trump's malignant narcissism, his past rhetoric (including suggesting that the 2016 election would be rigged if he didn't win, and refusing to commit to conceding), and the aforementioned legal jeopardy he faces, it is highly likely that he will refuse to immediately recognize the result. Likely he will prepare court challenges, while denouncing the result as being due to illegal immigrant voter fraud, and calling on his base to defend him.

Then, about a month after the election, the Electoral College meets to actually decide the result. Now, suppose Trump comes out, shortly beforehand, and says something like "This election was STOLEN by illegal Democrat voter fraud. I trust the Electoral College will make the right choice."

Do you really think there are no Republican electors who would, like their compatriots in the House and Senate, put loyalty to the President over loyalty to the country, especially if they have the flimsy cover offer by the "illegal immigrant voter fraud" narrative to paint their actions as principled patriotism? In a close race, it might take only a handful to disregard the votes of their states and appoint Trump President regardless of the result. And this would be completely and utterly constitutional.

There would doubtless be protests, rioting, resistance- but it would likely be muted by the technical legality of Trump's action, and the military, far from having an obligation to remove Trump from office as they would if he attempted an illegal coup, would actually be obliged to support him in this scenario by their oaths to uphold the Constitution. The only defense the opposition would have, the only point we would have to rally people around, would be the popular vote- and the notion that the will of the people should take precedence over the letter of the law.

There needs to be far more attention, in my opinion, paid to this possibility. We need, between now and election day, to demand that more states pass laws prohibiting faithless Electors, and institute harsher penalties for them. And we need to make sure that the turnout is overwhelming, because the bigger our margin of victory, the more faithless Electors it would require to change the result, and the more pressure Electors would be under not to do so. And, if worst came to worst, the more popular legitimacy we would have to refuse to recognize a technically legal Trump victory.

[Tribble]

Slavery aspect of the Electoral College aside, I've always felt that in theory it could have worked decently. The problem was in the implementation; apparently the framers never factored in the rise of political parties, that states would choose a general ticket for the candidates instead of voters focusing solely on their electors, that states would essentially force electors to pledge to a candidate, and that states would have all the electors vote the same way via "winner take all". Or in other words, the Electoral College more or less works in the exact opposite way that it was intended to due to constitutional ambiguity (which Madison and Hamilton tried and failed to fix via a Constitutional Amendment). Makes me wonder how things would have panned out differently had they been successful, though I digress.

Anyways, I don't recall off the top of my head any SCOTUS ruling on faithless electors -IIRC while it is constitutional that states can require them to pledge for a candidate, there is no ruling on whether or not they must vote that way when the time comes. It would seem that as things stand now they are constitutionally permitted to vote as they please, even if there are state laws which say otherwise. I would not be surprised if Trump resorted to such a tactic in the event of a loss, though I'm not sure how effective it would be given that Democrats would no doubt be doing the same thing. In a close race it could go either way, or potentially result in a tie (which means the House gets to choose President and the Senate the Vice President IIRC).

[Zaune]

There needs to be far more attention, in my opinion, paid to this possibility. We need, between now and election day, to demand that more states pass laws prohibiting faithless Electors, and institute harsher penalties for them. And we need to make sure that the turnout is overwhelming, because the bigger our margin of victory, the more faithless Electors it would require to change the result, and the more pressure Electors would be under not to do so. And, if worst came to worst, the more popular legitimacy we would have to refuse to recognize a technically legal Trump victory.

The counterpoint to that, of course, is the possibility of "faithless" electors refusing to accept a clear majority for Trump in response to evidence of blatant voter suppression or other dirty tricks. Isn't that at least half the whole point of having the electoral college system?

Instead of punishing electors for exercising their discretionary veto, why not set some specific rules for when an elector is justified in abstaining or declaring for the other candidate and what standards of evidence need to be met? And if possible, make the elector someone with no ties to any political party: Speaker of the state senate or chief justice of the highest state court, perhaps. If the US is at the point where even those posts have been compromised by partisanship then the system is probably no longer salvageable anyway.

[The Romulan Republic]

There needs to be far more attention, in my opinion, paid to this possibility. We need, between now and election day, to demand that more states pass laws prohibiting faithless Electors, and institute harsher penalties for them. And we need to make sure that the turnout is overwhelming, because the bigger our margin of victory, the more faithless Electors it would require to change the result, and the more pressure Electors would be under not to do so. And, if worst came to worst, the more popular legitimacy we would have to refuse to recognize a technically legal Trump victory.

The counterpoint to that, of course, is the possibility of "faithless" electors refusing to accept a clear majority for Trump in response to evidence of blatant voter suppression or other dirty tricks. Isn't that at least half the whole point of having the electoral college system?

Yes, it could absolutely go both ways.

Instead of punishing electors for exercising their discretionary veto, why not set some specific rules for when an elector is justified in abstaining or declaring for the other candidate and what standards of evidence need to be met? And if possible, make the elector someone with no ties to any political party: Speaker of the state senate or chief justice of the highest state court, perhaps. If the US is at the point where even those posts have been compromised by partisanship then the system is probably no longer salvageable anyway.

Even if you barred Electors from being members of a party, they would still have political sympathies and biases, because all people do.

Legislation clarifying their role isn't the worst idea, but I'd prefer to see the whole thing abolished and replaced with a straight popular vote. That isn't going to happen before 2020, though, which is why I want to see laws against faithless Electors as a temporary safeguard pending more systematic reform.

[Tribble]

Even if you barred Electors from being members of a party, they would still have political sympathies and biases, because all people do.

Legislation clarifying their role isn't the worst idea, but I'd prefer to see the whole thing abolished and replaced with a straight popular vote. That isn't going to happen before 2020, though, which is why I want to see laws against faithless Electors as a temporary safeguard pending more systematic reform.

Not going to happen. Why would a smaller state deliberately give up some of its voting power? A more plausible scenario would have the electors assigned proportionally within each state.

On a side note, if Canada were to become a republic and the Governor General / President becomes an elected position, we'd almost certainly have to adopt some form of electoral college system. Smaller provinces are already pissed off that the government is mostly decided by Ontario and Quebec; there's no way they'd consent to having a governor general / president getting elected proportionally too.

[The Romulan Republic]

Even if you barred Electors from being members of a party, they would still have political sympathies and biases, because all people do.

Legislation clarifying their role isn't the worst idea, but I'd prefer to see the whole thing abolished and replaced with a straight popular vote. That isn't going to happen before 2020, though, which is why I want to see laws against faithless Electors as a temporary safeguard pending more systematic reform.

Not going to happen. Why would a smaller state deliberately give up some of its voting power? A more plausible scenario would have the electors assigned proportionally within each state.

On a side note, if Canada were to become a republic and the Governor General / President becomes an elected position, we'd almost certainly have to adopt some form of electoral college system. Smaller provinces are already pissed off that the government is mostly decided by Ontario and Quebec; there's no way they'd consent to having a governor general / president getting elected proportionally too.

Counter that with the fact that as of today, 15 states plus the District of Columbia have adopted the National Popular Vote Interstate Compact:

https://en.wikipedia.org/wiki/National_ ... te_Compact

Its signatories agree that they will require their Electors to vote according to the national popular vote. The Compact takes effect once enough states sign it to account for a majority of the Electoral College. It would therefore essentially neuter the Electoral College, as a majority of Electors would be pledged to vote in accordance with the popular vote. Its not as permanent a fix as a Constitutional Amendment, and some of argued that it would violate the Voting Rights Act or require Congressional approval to be legal, but it does provide a plausible avenue to preventing the Electoral College from overturning the will of the voters.

The current signatories account for 36.4% of the Electoral College and 72.6% of the votes needed for the Compact to take effect. In addition, nine states currently have pending legislation on the topic. If all of these states passed it (or even if a couple of the smaller ones voted it down), it would be enough for the NPVIC to take effect. Note also that the signatories include such states as Vermont, Hawaii, Connecticut, Rhode Island, Delaware, and New Mexico, plus DC- all with small populations. And the "legislation pending" category includes New Hampshire and Kansas. So clearly, there are small states willing to give up the supposed protection of the Electoral College.*

The cynical argument doesn't always win.

There's also the fact that contrary to popular mythology, the Electoral College doesn't actually give smaller states more power. It gives swing states more power. A Vermont or Wyoming voter's vote is worth approximately jack shit under the Electoral College, compared to the votes of much larger Pennsylvania or Ohio.

Blue states large and small also haven't forgotten that the EC has twice in the last twenty years appointed a disastrous Republican Presidency against the will of the American people. There's a reason that every single signator to the NPVIC is either a solid blue or blue-leaning swing state, although the states in the "pending legislation" category are all either swing or red states.

That said, the issue of whether the number of Electors or the winner-take all system (except in Nebraska and Maine) is representative is a somewhat separate issue from the danger of faithless Electors. You could have an Electoral College while still having laws barring or restricting faithless Electors, at least in theory (though I personally fail to see the point of it, except to make the Electoral system more complicated and keep all the power in the hands of a few swing states).


*Hell, I'm an example myself. I'm a Colorado voter- a voter from a relatively small swing state. My vote is disproportionately powerful under the current system, at least in theory. And that's fucking wrong. One person, one vote.

[Zaune]

Even if you barred Electors from being members of a party, they would still have political sympathies and biases, because all people do.

Undoubtedly. But giving the job to someone who must swear a solemn oath that where their political sympathies and the letter and spirit of the law disagree, they will uphold and enforce the law would be a step in the right direction.

[The Romulan Republic]

Even if you barred Electors from being members of a party, they would still have political sympathies and biases, because all people do.

Undoubtedly. But giving the job to someone who must swear a solemn oath that where their political sympathies and the letter and spirit of the law disagree, they will uphold and enforce the law would be a step in the right direction.

I definitely agree with that.

[aerius]

Anyways, I don't recall off the top of my head any SCOTUS ruling on faithless electors -IIRC while it is constitutional that states can require them to pledge for a candidate, there is no ruling on whether or not they must vote that way when the time comes. It would seem that as things stand now they are constitutionally permitted to vote as they please, even if there are state laws which say otherwise. I would not be surprised if Trump resorted to such a tactic in the event of a loss, though I'm not sure how effective it would be given that Democrats would no doubt be doing the same thing. In a close race it could go either way, or potentially result in a tie (which means the House gets to choose President and the Senate the Vice President IIRC).

That's a hell of a potential shit show if the State & Federal laws aren't cleared up ahead of time. You could conceivably end up with a scenario where all 3 branches of the government lose a large part of their legitimacy and you end up with a free for all. Add some shit-disturber radical groups to the mix along with 24/7 media coverage and you'll have the best reality show that money can buy.

[TimothyC]

Do you really think there are no Republican electors who would, like their compatriots in the House and Senate, put loyalty to the President over loyalty to the country, especially if they have the flimsy cover offer by the "illegal immigrant voter fraud" narrative to paint their actions as principled patriotism? In a close race, it might take only a handful to disregard the votes of their states and appoint Trump President regardless of the result. And this would be completely and utterly constitutional.

The slates of electors that are the voters in the electoral college are selected by the various state party apparatuses. In short, if President Trump looses in the electoral college, he'd have to flip people that were picked by the state democratic parties to pull off a win, which I think is unlikely.

[The Romulan Republic]

Do you really think there are no Republican electors who would, like their compatriots in the House and Senate, put loyalty to the President over loyalty to the country, especially if they have the flimsy cover offer by the "illegal immigrant voter fraud" narrative to paint their actions as principled patriotism? In a close race, it might take only a handful to disregard the votes of their states and appoint Trump President regardless of the result. And this would be completely and utterly constitutional.

The slates of electors that are the voters in the electoral college are selected by the various state party apparatuses. In short, if President Trump looses in the electoral college, he'd have to flip people that were picked by the state democratic parties to pull off a win, which I think is unlikely.

That provides a partial safeguard. However, there are a number of states under the control of Republican state governments which might possibly go blue in the next election.

[Tribble]

Counter that with the fact that as of today, 15 states plus the District of Columbia have adopted the National Popular Vote Interstate Compact:

https://en.wikipedia.org/wiki/National_ ... te_Compact

Its signatories agree that they will require their Electors to vote according to the national popular vote. The Compact takes effect once enough states sign it to account for a majority of the Electoral College. It would therefore essentially neuter the Electoral College, as a majority of Electors would be pledged to vote in accordance with the popular vote. Its not as permanent a fix as a Constitutional Amendment, and some of argued that it would violate the Voting Rights Act or require Congressional approval to be legal, but it does provide a plausible avenue to preventing the Electoral College from overturning the will of the voters.

The current signatories account for 36.4% of the Electoral College and 72.6% of the votes needed for the Compact to take effect. In addition, nine states currently have pending legislation on the topic. If all of these states passed it (or even if a couple of the smaller ones voted it down), it would be enough for the NPVIC to take effect. Note also that the signatories include such states as Vermont, Hawaii, Connecticut, Rhode Island, Delaware, and New Mexico, plus DC- all with small populations. And the "legislation pending" category includes New Hampshire and Kansas. So clearly, there are small states willing to give up the supposed protection of the Electoral College.*

Yes, I did read up about it before posting. I still think its irrelevant, at least for the next few election cycles. Without approval from Congress it's likely unconstitutional given that agreements and compacts are forbidden between states. Also, the majority of the states listed regularly vote Democrat, which seems to indicate that Republican states won't be in a hurry to join them.


The cynical argument doesn't always win.

There's also the fact that contrary to popular mythology, the Electoral College doesn't actually give smaller states more power. It gives swing states more power. A Vermont or Wyoming voter's vote is worth approximately jack shit under the Electoral College, compared to the votes of much larger Pennsylvania or Ohio.

While that's true under a "winner take all" system, if the Electors within each state were voted proportionally that wouldn't be a problem.

Blue states large and small also haven't forgotten that the EC has twice in the last twenty years appointed a disastrous Republican Presidency against the will of the American people. There's a reason that every single signator to the NPVIC is either a solid blue or blue-leaning swing state, although the states in the "pending legislation" category are all either swing or red states.

Pending, maybe, but I doubt they are in a hurry.

That said, the issue of whether the number of Electors or the winner-take all system (except in Nebraska and Maine) is representative is a somewhat separate issue from the danger of faithless Electors. You could have an Electoral College while still having laws barring or restricting faithless Electors, at least in theory (though I personally fail to see the point of it, except to make the Electoral system more complicated and keep all the power in the hands of a few swing states).

It's likely that any law barring or restricting faithless electors would be unconstitutional. The electors are rather explicitly given the power to vote for the president and vice-president.

Another theoretical alternative would be to return to the original intent by having the Electors vote for the President without having to pledge first, though I can't see that happening either.

*Hell, I'm an example myself. I'm a Colorado voter- a voter from a relatively small swing state. My vote is disproportionately powerful under the current system, at least in theory. And that's fucking wrong. One person, one vote.

I disagree with you there, at least when it comes to a federal system of government where some provinces / states have a significant population advantage over others. In that instance I feel that proportional voting can lead to more political instability than its worth, even if that means that bigger states don't have their full voting power. For example, in Canada Ontario has ~40% of the population... to put that in perspective, it has more people than every other province ad territory in Canada combined, excluding Quebec. It's still the dominant player by far, even though it currently only has ~36% of the seats. And Quebec, the second highest, has ~23% of the population. Those two by themselves usually decide most elections (except for the times where Quebec effectively spoils their vote by voting separatist), which the rest of Canada complains enough about already. Hell, western separatism is already on the rise again, especially in Alberta. Can you imagine if we went to an elected governor general / president, and it was a strictly proportional vote (aka Ontario and Quebec get to choose)? No way in hell the rest of the country would put up with something like that. If you were going to convince the smaller provinces to go along with that there'd have to be some kind of point based system like an electoral college so smaller provinces (aka the ones not named Ontario and Quebec) don't feel left out.

[The Romulan Republic]

Relevant- the 10 Circuit Court has just ruled that being a faithless Elector is Constitutional, and that Electors cannot be compelled to vote with the popular vote in their states:

https://nbcnews.com/politics/elections/ ... r-n1044961

A federal appeals court ruled late Tuesday that presidential electors who cast the actual ballots for president and vice president are free to vote as they wish and cannot be required to follow the results of the popular vote in their states.

The decision could give a single elector the power to decide the outcome of a presidential election — if the popular vote results in an apparent Electoral College tie.

"This issue could be a ticking time bomb in our divided politics. It's not hard to imagine how a single faithless elector, voting differently than his or her state did, could swing a close presidential election," said Mark Murray, NBC News senior political editor.

It hasn't been much of an issue in American political history because when an elector refuses to follow the results of a state's popular vote, the state simply throws the ballot away. But Tuesday's ruling says states cannot do that.

The decision, from a three-judge panel of the 10th U.S. Circuit Court of Appeals in Denver, is a victory for Micheal Baca, a Colorado Democratic elector in 2016. Under state law, he was required to cast his ballot for Hillary Clinton, who won the state's popular vote. Instead, he crossed out her name and wrote in John Kasich, a Republican and then the governor of Ohio.

The secretary of state removed Baca as an elector, discarded his vote and brought in another elector who voted for Clinton. In a 2-1 decision, the appeals court said the nullification of Baca's vote was unconstitutional.

When voters go to the polls in presidential races, they actually cast their votes for a slate of electors chosen by the political parties of the nominees. States are free to choose their electors however they want, Tuesday's ruling said, and can even require electors to pledge their loyalty to their political parties.

But once the electors are chosen and report in December to cast their votes as members of the Electoral College, they are fulfilling a federal function, and a state's authority has ended. "The states' power to appoint electors does not include the power to remove them or nullify their votes," the court said.

Because the Constitution contains no requirement for electors to follow the wishes of a political party, "the electors, once appointed, are free to vote as they choose," assuming that they cast their vote for a legally qualified candidate.

A total of 30 states have laws that bind electors, requiring them to cast their votes for whichever candidate won that state's popular vote. But the laws are weak, providing only nominal penalties for what are known as "faithless electors" who fail to conform to the popular vote.

The Supreme Court ruled in 1952 that states do not violate the Constitution when they require electors to pledge that they will abide by the popular vote. But the justices have never said whether it is constitutional to enforce those pledges.

Legal scholars said Tuesday's ruling was the first from a federal appeals court on the issue of faithless electors. It applies immediately to the six states of the 10th Circuit: Colorado, Utah, Wyoming, Kansas, Oklahoma and New Mexico.

“This court decision takes power from Colorado voters and sets a dangerous precedent," said Jena Griswold, Colorado's secretary of state. "Our nation stands on the principle of one person, one vote. We are reviewing this decision with our attorneys, and will vigorously protect Colorado voters.”

The federal court ruling conflicts with a decision from Washington state's Supreme Court in May, which said electors must follow the results of the popular vote. "The power of electors to vote comes from the state, and the elector has no personal right to that role,” the court said.

Lawyers from the nonprofit Equal Citizens, which represented the Washington state electors and Baca in Colorado, said they will appeal the Washington ruling to the Supreme Court.

“We know Electoral College contests are going to be closer in the future than they have been in the past. And as they get closer and closer, even a small number of electors could change the results of an election," said Lawrence Lessig, a Harvard law professor who founded Equal Citizens and is part of its legal team. "Whether you think that’s a good system or not, we believe it is critical to resolve it before it would decide an election.”

If the Supreme Court chooses to take up the dispute, it would have time to rule on the issue before the Electoral College meets in December 2020 to cast the formal vote for president.

So that probably kills every attempt by states to prohibit faithless Electors, and might kill the National Popular Vote Interstate Compact as well.

Given the rampant partisanship and lock-step loyalty of the Republican Party, does anyone really believe that this won't end with Republican electors ignoring an unfavorable vote en mass? Or that the Right-leaning Supreme Court won't uphold this decisions?

This is the most brazen declaration in a long time that America is an oligarchy, not a democracy. This is the courts saying: "your votes are legally worth less than a piece of used toilet paper" to every person in America. You can honestly make an argument from this that there's no point even having a Presidential election: just have the Electoral College meet every four years to pick the PotUS. And I wouldn't be shocked if Republicans argue exactly that before much longer.

[The Romulan Republic]

I'm going to say this right now: a system which allows a handful of people to pick the President for partisan or personal reasons against the will of a clear majority is not just. I don't give a fuck if its the law. We've dodged the issue thus far, because faithless Electors changing the result is just not something that happens. But if that happens in 2020, and I fear that it might, I will not recognize the legitimacy of the results, and I will urge Democratic candidates not to recognize them either. What I expect would happen is that the Democrats would submit to the unjust law and concede, but what SHOULD happen in such a scenario is that the Democrats set up a rival Presidency and refuse to acknowledge the legitimacy of the Trump Regime. The law is not just when it puts ultimate power in the hands of a few and tries to hide it behind a veneer of democratic legitimacy.

Edit: Also, turnabout is fair play. If Republican Electors ignore the results of their states to appoint Trump, and Democratic Electors in red states should do likewise.