Electoral College and Faithless Electors
As the United States’ presidential elections come to a close and Americans finish counting the votes, the question of the necessity and fitness of the Electoral College system emerges. Generally, in the course of every presidential race, the projected winner is announced on the election night or soon after (Hall, 2012). However, the actual Electoral College vote takes place in mid-December, when the electors meet in their states (Bennett, 2006). The aforementioned Electoral College method of electing the President and Vice President was established in Article II, Section 1 of the Constitution (“Constitution”) and revised by the Twelfth Amendment (Neale, 2017). Importantly, each state gets as many electors as their members of Congress meaning there are currently 538 electors overall (Hall, 2012). For the last two centuries, it has been argued that the Electoral College is used to establish a fundamental component of American federalism (Guelzo, 2018), yet it is currently subject to open criticism. Notwithstanding the historical importance of this body, the twenty-first-century electorate does not consider the Electoral College to fit within modern politics. More crucially, the question arises whether the States can reassure their citizens that they appoint the vote for the democratically chosen candidate. (Chiafalo v Washington, 2020). Numerous controversies, which started to swirl especially around the 2000 presidential elections (Bennett, 2006), have continued to grow during the past two decades. As the popularity of the Electoral College falls, attempted reforms are more frequently introduced and become incessantly present in the congressional debate.
Why was the electoral system established?
Dating back to the very first presidential elections of the United States, the Electoral College was established as a form of compromise between larger and smaller states. Many of the latter displayed a concern that bigger states, such as New York or Philadelphia, would somehow dominate the elections (West, 2020). Hence, they devised an institution which assured that votes were distributed proportionally to the number of each state’s senators and House members. Even though the former initially tried to advantage smaller because the number of members was based on the population, it is worth noting that each state was entitled to choose a minimum of two senators, regardless of its size (West, 2020). Another important aspect was the establishment of the politically independent group chosen by all states. It was to resemble a ‘body of wise men’ who would deliberate and judiciously choose the best man for the presidency. Significantly, there were no political parties in 1787 (Ross, 2019). The founders of the system assumed that the electors would vote independently and consciously declare the right candidate. According to the supporters of the system, among which is Prof. Guelzo, the Electoral College has been a very significant mechanism that has assured ‘stability, liberty and legitimization – all of which democracies can too easily come to undermine’ (Guelzo, 2018). Further, some argue that it served as a brake to ‘over-mighty’ presidents who might use the popular majority to claim their victory and ‘speak for the people against Congress’ (Guelzo, 2018). Finally, it was also intended to give the states’ legislatures broad authority over the choice of electors. Since at the legislatures’ discretion, electors could be picked by popular vote, either by the legislature itself or another body altogether (Neale, 2017). Yet, modern criticism has emphasized that the whole system neglects the importance of a direct popular vote.
‘Wrong winners’ and ‘one person, one vote’ rule
In most elections, the system has operated smoothly (West, 2020) and the issues were not recognised until the end of the twentieth century. The 2000 electoral college winner received half a million fewer popular votes than his principal rival (Brinkley, 2001). This produced what is sometimes called a ‘wrong winner’ (Bennett, 2006). It all started with ballot controversies in Florida that led to the Supreme Court’s order for a manual recount. However, as G. Bush campaign immediately filed suit, the U.S. Supreme Court paused manual recounts to hear oral arguments from the candidates (West, 2020). The latest controversies occurred in 2016, as the winning candidate lost the popular vote by over three million ballots, yet the Electoral College system secured his victory by 74 votes. Due to this reason, it became clear that a so-called ‘electoral college strategy’ may help win the election despite even a considerable loss in the nationwide popular vote (West, 2020). Hence, campaigns are plotted on a state-by-state basis to secure as many swing state electoral votes as possible. Following the 2000 election, further vulnerabilities of the system became widely commented on (Neale, 2017). One of these is the question of democracy, as the President is eventually chosen indirectly. Moreover, the issue of legislative fairness arises. The general ticket system, which is currently used in all states except Maine and Nebraska, is often alleged to disenfranchise voters who prefer the losing candidates in the states. Yet, the most crucial and concerning reason is the existence of ‘faithless electors’.
Who are faithless electors?
Generally speaking, electors are referred to as ‘faithless’ when they choose to vote for candidates other than those they were elected to support (Neale, 2017). Historically, Samuel Miles, a Federalist from Pennsylvania, was the first elector to exercise this power when he casted his vote for the Democratic-Republican candidate during the elections of 1796 (West, 2020). It started a process of practicing this form of acting against the will of the electorate, and throughout American history 157 electors have voted contrary to their state’s chosen winner (West, 2020). Among the reforms and amendments of the Electoral System, the reasons for ending the ‘faithless elector’ phenomenon is articulated most firmly and convincingly. In the 2016 presidential elections, 7 electors casted votes for candidates other than those to whom they were initially pledged. Importantly, during the same year, 3 would-be faithless electors were prevented from voting for other candidates than those to whom they declared support (Neale, 2017). These electors created an undeniable precedent which creates uncertainty about how the system should look like in the future. The vote of Bret Chiafalo, among others, and the ‘Hamilton Electors’ movement became a subject of the judicial proceedings which eventually ended the practice with the Supreme Court’s decision in Chiafalo v Washington.
Supreme Court decision in the Chiafalo case
On the 6th of July 2020, J. Elena Kagan delivered an opinion of the Supreme Court which unanimously upheld the laws across the country that remove, punish or nullify the votes of Electoral College delegates who refuse to vote for the candidate to whom they have pledged. It was a significant loss for the faithless electors, who have long argued for their right to vote independently, according to their political allegiance. This case, decided right in the middle of the 2020 presidential campaign, appears to prevent the major constitutional crisis (Totenberg, 2020). Notably, the Supreme Court implicitly stated its reasons behind the decision; that ‘where Constitution is silent, authority resides in the consent of the people of each individual State’ (Chiafalo v Washington, 2020). The important aspect of the ruling is that the founders of the Electoral College, dating back to Washington, failed to anticipate the growth of the political parties. Even though nothing in the Constitution prevents the states from ‘taking away electors’ voting discretion’ (Totenberg, 2020), the electors should take the popular vote outcome into consideration. However, the question of efficiency and fairness arises in the aforementioned situations of ‘wrong winners’ and unexpected electoral vote distribution. The Supreme Court does not answer this matter directly, yet the decision naturally points the system in the direction of reform and elimination of other problems. The Congress has already proposed several ways of change, notwithstanding no electoral college reform amendment has been able to meet even the first step of this exacting requirement since the Twelfth Amendment in 1804 (Neale, 2017). The Supreme Court ruling is certainly a good start, but it requires a firmly established stimulus to succeed.
[1] Brinkley, D. (2001). 36 Days: The Complete Chronicle of the 2000 Presidential Election Crisis. New York: Times Books.
[2] Bennett, R. (2006). Taming the Electoral College. Stanford: Stanford University Press.
[3] Chiafalo et al. v. Washington [2020] 193 Wash. 2d 380, 441 P. 3d 807 (Supreme Court of the United States).
[4] Guelzo, A. (2018). In Defense of the Electoral College, National Affairs, 2019(1), [online]. Available at: https://www.nationalaffairs.com/publications/detail/in-defense-of-the-electoral-college [Accessed 1st Dec. 2020].
[5] Hall, T. (2012). Primer on the U.S. Election System. International Foundation for Electoral Systems. [online] Available at: https://www.ifes.org/sites/default/files/english_primer_0.pdf [Accessed 1st Dec. 2020].
[6] Neale, T. (2017). Electoral College Reform. Contemporary Issues for Congress. Congressional Research Service, The Library of Congress.
[7] Ross, D. (2019). Why was the Electoral College created? History, [online]. Available at: https://www.history.com/news/electoral-college-founding-fathers-constitutional-convention [Accessed 1st Dec. 2020].
[8] West, D. (2020). It is time to abolish the Electoral College. Brookings Institution, [online]. Available at: https://www.brookings.edu/wp-content/uploads/2019/10/Big-Ideas_West_Electoral-College.pdf [Accessed 1st Dec. 2020].
[9] Totenberg, N. (2020). Supreme Court Rules State 'Faithless Elector' Laws Constitutional, [podcast], National Public Radio. Available at: https://www.npr.org/2020/07/06/885168480/supreme-court-rules-state-faithless-elector-laws-constitutional?t=1606906492079 [Accessed 1st Dec. 2020].