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What if the Electoral College went rogue?

Growing on me
(KAL/Baltimore Sun)

When the Founding Fathers created the Electoral College as the method for selecting the president, they envisioned an "assembly of wise men and learned elders" who would vote independently and make up their own minds about who should be president and vice president.

Over time, however, the Electoral College has not worked out quite as the founders planned. As political parties grew in influence and gained more control over the electoral process, the Electoral College has acted less as an independent voting body and more as a rubber stamp of what the voters do on Election Day.

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Now, according to laws in most states, political parties select electors for their party, and when someone votes for a candidate on Election Day they are essentially voting for the electors from that candidate's party. Thus, if the popular vote in a state chooses the Republican candidate, for example, the Republican party's electors will cast the electoral votes for that state — most likely for the Republican candidate. So we pretty much know who will be president shortly after Election Day and weeks before the Electoral College actually votes on the first Monday after the second Wednesday in December.

But does it have to be that way? What if, notwithstanding what the voters did on Election Day, some electors decided that they wanted to act "wise" and "learned" and vote for someone other than their party's candidate? Could we actually have an election where we don't know who will be president until after the Electoral College votes?

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The answer to that appears to be a resounding and provocative "yes."

About half of the states and the District of Columbia have laws or party pledges that require electors to vote according to the popular vote. Some states go further and have laws that authorize fines on so-called "faithless electors" or invalidate their votes and allow replacement by substitute electors.

But here's where it gets interesting. The constitutionality of these state laws that penalize faithless electors has never been tested. A 1952 Supreme Court decision held that requiring a pledge was constitutional, but it did not say whether such a pledge can actually be enforced. Simply put, while the Constitution allows states to decide how to choose electors, it does not appear to allow the states to tell their electors how to vote. Moreover, almost half of the states don't have laws that obligate electors to vote for the winner of the popular vote; in those states, electors can almost certainly vote their minds.

Wikipedia lists some 179 faithless electors in presidential elections since 1796, but none have affected the outcome of an election. The question is, if enough electors decided to vote as they chose no matter who won the popular vote, could they swing an election?

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For example, let's say a large number of Republican electors decided that they did not want to vote for Donald Trump, even if he wins the popular vote in their state. What if some of those electors announced that if the voters selected the Republican candidate in their state on Election Day, they were actually going to cast their electoral votes for Candidate X (you fill in the blank). Could that influence some people — including Democrats — to vote for the Republican candidate on the belief that even though Mr. Trump's name was on the ballot, they were actually voting for someone else? If enough people did that, could it change the math in the electoral race by, if not giving Candidate X a victory outright, creating a three-way race that could end up in the House of Representatives for final determination? And then, what might happen in the courts in the aftermath of an Electoral College that went rogue?

This has been an extraordinary election year. Many things have happened that no one ever expected to see in a United States presidential election. No doubt, even more surprises are ahead. In a year where we have learned to expect the unexpected, nothing may be certain until the final elector in the final state has cast the final vote some six weeks after Election Day — and maybe even not then.

Syl Sobel is an attorney and the author of children's books on U.S. history and government, including "Presidential Elections & Other Cool Facts" and "The U.S. Constitution and You." His website is www.sylsobel.com.

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