'Faithless electors' — not Electoral College — cause voter suppression

The Electoral College has come under great scrutiny in the wake of the 2016 election. Critics and proponents have been passionate in their calls for reform or maintenance. Through all the clamor, we are only likely to see one significant change to the institution by the 2020 election — the suppression of elector independence.

Seven electors voted contrary to expectations and three more electors attempted to cast faithless votes. The seven faithless electors roughly translates to the disenfranchisement of over 1.5 million votes. If all electors had been successful in following through with their actions, nearly 2.5 million votes would have been cast contrary to expectations.

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Whether Congress chooses to take up the issue of faithless electors when they convene Jan. 6 will largely determine if state legislatures work to suppress rebellious electors.

 

Twenty-nine states and the District of Columbia have laws that seek to bind electors to their state’s popular vote. A handful of states even criminalize the act of faithless voting through fines or misdemeanors. Washington state, which had 4 faithless electors this year, levies a $1,000 fine for faithless electors.

In most of these states, the move to punish faithless electors was made immediately after the occurrence of a rogue elector in that state. Washington’s law was passed after Mike Padden cast a faithless vote for Ronald Reagan instead of Gerald Ford in 1976.

Before this election, the last faithless elector came in 2004, when an elector in Minnesota voted for John Edwards for both president and vice-president. It was likely a mistake, but because Minnesota had a secret ballot, it remains a mystery as to which elector did the deed.

Soon after, the state passed a law where all votes would be made in public and any faithless vote would immediately be invalidated and the offender would be replaced by an alternate elector.

No elector had ever been prosecuted or replaced for a faithless vote — until this year. Minnesota’s statute was put to the test when Muhammad Abdurrahman cast his vote for Bernie SandersBernie SandersThe Hill’s 12:30 Report: Milley apologizes for church photo-op Harris grapples with defund the police movement amid veep talk Biden courts younger voters — who have been a weakness MORE and was immediately replaced. His vote was not recorded, a replacement elector was chosen, and Hillary ClintonHillary Diane Rodham ClintonWhite House accuses Biden of pushing ‘conspiracy theories’ with Trump election claim Biden courts younger voters — who have been a weakness Trayvon Martin’s mother Sybrina Fulton qualifies to run for county commissioner in Florida MORE claimed all over Minnesota’s electoral votes.

Similarly, Michael Baca, one of the leaders of the “Hamilton Elector” movement was replaced when he sought to cast a vote for John Kasich, rather than Clinton. This approach is similar to the one taken by the “Uniform Faithful Presidential Electors Act.”

Proponents of elector independence argue that such laws are in contradiction to the original intent of the Founding Fathers. Although electors have largely become rubber stamps, Federalist 68 strongly advocates that electors were meant to serve as a final check in the presidential selection process.  

However, the emergence of political parties and the 12th Amendment largely took discretion out of the hands of electors. Rather than being chosen for their discernment, they were and continue to be chosen due to their steadfast allegiance to their respective parties.

In spite of this, my research of presidential electors has found that while few electors actually go rogue, around 10 percent of those serving in the past three election cycles considered voting contrary to expectations. Dissatisfaction with the party’s nominee is a primary reason electors consider defection. This would seem to be the case among this year’s faithless electors.    

Few citizens, if any, expected electors to choose candidates other than Hillary Clinton or Donald TrumpDonald John TrumpSenate advances public lands bill in late-night vote Warren, Democrats urge Trump to back down from veto threat over changing Confederate-named bases Esper orders ‘After Action Review’ of National Guard’s role in protests MORE when they cast their votes for electors Nov. 8.  Yet, Colin Powell, John Kasich, Bernie Sanders, Ron Paul, and Faith Spotted Eagle received votes in the 2016 Electoral College.  

Given the evolution of presidential elections, I believe our Constitution provides for many other more suitable checks than elector discretion to prevent the concentration of power in the hands of a despot. This is especially the case given how the office of presidential elector has evolved over time.

That one individual can change the wishes of hundreds of thousands of voters is extraordinary. It produces unnecessary uncertainty in an already maligned process and runs counter to the expectations of the office of presidential elector.  

This year’s Electoral College “revolt” will undoubtedly result in much more attention to those who seek the position in the future. In the wake of the fifth election where the popular vote winner did not win the Electoral College vote, many are looking for wholesale change in how we choose presidents.

However, I suspect attempts to curtail elector independence will likely be the biggest operational change to the Electoral College by the 2020 election.    

Robert Alexander is Professor of Political Science at Ohio Northern University and author of “Presidential Electors and the Electoral College: An Examination of Lobbying, Wavering Electors, and Campaigns for Faithless Votes.”


The views of Contributors are their own and are not the views of The Hill.

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