It’s the one scenario that Democrats are probably most fearful of, and rightly so. What if next November rolls around and in spite of all the Russia talk and impeachment follies for the better part of four years, Donald Trump once again loses the popular vote but wins the electoral college? What if he wins a second term? The scenes of liberals sobbing on each other’s shoulders at Democratic victory parties would be something to see, but perhaps all hope for them would not be lost.
That appears to be the subtle message in George Will’s column this week. Even if Trump is projected to win the electoral college, that doesn’t mean that he’s actually going to. The reason for liberals to keep their hopes up is that a sufficient number of the actual human beings who make up the EC could prove to be faithless electors and rob him of his victory. And according to Mr. Will, it’s totally their right to do so. He frames the discussion around an upcoming Supreme Court case involving three faithless electors from Washington state who voted for Colin Powell instead of Hillary Clinton in 2016 and were fined for doing so. The state supreme court upheld the fines, but a federal appeals court later overturned the ruling. (WaPo)
Clearly, Washington state’s court was mistaken, as are the majority of states, including Washington and Colorado, that have laws denying electors discretion. Washington state’s court was correct that nothing in the Constitution grants discretion. But nothing denies it. The Constitution says each state shall appoint electors “in such manner as the Legislature thereof may direct.” The Washington court decided simply that the state power to choose the manner of selecting electors is “absolute” and — non sequitur alert — therefore includes each state’s discretion to deny discretion to the electors. A contrary conclusion is justified by Congress’s practice of counting and accepting votes that electors cast for candidates other than those the electors were pledged to support.
This practice of respecting electors’ discretion is congruent with founding-era debates about, and behavior of, presidential electors. In Federalist 68, Alexander Hamilton justified regarding electors as independent actors because “a small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite” for the complex and momentous task of selecting a president.
As strange as it may sound, Will is probably correct on this one. If the Supreme Court looks to the debates held among the Founders while they were cooking up this electoral college scheme, they will note that Hamilton argued vigorously that the electors would be more competent to handle the task of selecting a president than the unwashed masses toiling in the fields. In other words, Hamilton was basically granting the electors (who would be coming from the upper classes) the right to overturn the will of the general population.
I suppose it’s also true, as Will points out, that while the Constitution doesn’t specifically grant the electors the discretion to vote for whom they choose, it also doesn’t deny them that option. And if the Founders truly wanted the electors to always hew to the decision of the state’s voters, they could easily have made that clear. They chose not to do so.
The author goes on to point out that this might not be as much of a problem as we may think. His reasoning is that a SCOTUS decision affirming the right of electors to be faithless “will incentivize state political parties to be diligent about selecting steadfast electors.”
I would go one step further and say that this is likely already happening. The days of handing out positions as electoral college electors as favors to random big-dollar donors or powerful state party senior officials are probably already over. What happened in Washington state in 2016 didn’t have any real impact on the outcome of the election, but it should still have scared the stuffing out of everyone.
If the next election really comes down to the wire in the EC as many observers expect it to, neither party is going to be willing to take any chances. I would expect that the state parties all across the nation will be buckling down and vetting the full history of anyone they are considering honoring with the task. The die-hard partisans from both sides with long histories of faithfully and vigorously toeing the party line will be the only ones considered as potential electors. And if they don’t take such precautions they are damned fools and deserve what they get.
