I had a question about a Washington Post opinion article written recently by Harvard Law School professor Lawrence Lessig.
The article states that the Constitution gives the final say to the Electors- who could potentially cast their vote in opposition of their state (on December 19). Lessig says that idea is to have a final preventative measure to stop the people from choosing a catastrophic candidate for president. How far fetched is this idea?
— Kate, Washington, D.C.
Kate is referring here to this Nov. 24 op-ed from the Washington Post. In it, law professor (and former presidential candidate) Lawrence Lessig doesn’t exactly argue against the concept of the Electoral College itself, as many have; in fact, he argues that electors are there as “a circuit breaker — just in case the people go crazy.” And in 2016, he argues, “the people did not go crazy” — he uses the fact that Hillary Clinton won the popular vote (by nearly 3 million votes) as proof.
Therefore, he says, the electors should vote her in. In other words, he seems to be arguing that the college itself isn’t necessarily bad, but that the electors should vote in proportion with how the population votes.
Is this far-fetched? It’s far-fetched to think that the electors actually will do such a thing. However, it’s not such a crazy idea to say that electors can vote their conscience, according to Richard Primus, who teaches constitutional law at the University of Michigan.
He said the Electoral College came about because the founders really did want electors to act as intermediaries between the people and the election of the president.
“The Electoral College made sense to the founders because they were looking for an alternative to having Congress select the president, [and] the idea of a direct popular vote for the president didn’t make sense to them,” he said.
“So they came up with the idea of a special group that would be elected by the states, and in their vision of it the electors were absolutely going to vote their consciences,” he added.
But that has changed. Starting in the 19th century, he says, electors have followed party lines, not necessarily their consciences.
“Our modern system has come to treat the electoral college as a rubber stamp,” he said.
That has tended to work without creating much fuss, he added, because the Electoral College has almost always elected the person who won the popular vote. It’s true that sometimes there are wide differences between an Electoral College win and a popular vote win — a small win in the popular vote can sometimes yield a huge Electoral College win, but the winner has usually been the winner. (For more on the history of the Electoral College, see NPR’s recent interview with Cokie Roberts on the topic.)
Still, right now, the Electoral College is set to elect the candidate who lost the popular vote for the second time in recent history.
The below chart shows the percent winning margin in the popular vote versus the percent winning margin in the electoral vote across recent elections.
Should some electors decide they want to vote their consciences, they could.
Granted, in some states, state law might try to stop them — in 29 states, plus the District of Columbia, electors are bound by law to vote the way the state voted, according to FairVote, a voting rights organization. So by law, only 155 out of 306 Trump electors can change their votes (along with 81 of Clinton’s 232).
However, the enforcement of these laws hasn’t been terribly strict, FairVote also notes, pointing out that electors from some of these “bound” states have changed their votes with little consequence: “Over the years, however, despite legal oversight, a number of electors have violated their state’s law binding them to their pledged vote. However, these violators often only face being charged with a misdemeanor or a small fine, usually $1,000.” Indeed, as the U.S. Archives reports, “No Elector has ever been prosecuted for failing to vote as pledged.”
Long story short: The idea that electors could change their votes isn’t at all far-fetched.
What is far-fetched, as we said in last week’s Politics Podcast, is that this could sway the election.
One reason is that it’s not just a handful that would need to change their votes (or abstain) to change the outcome: Trump would need to lose 37 votes to lose the electoral vote. That doesn’t seem likely — only one elector is “at risk” of changing his or her vote, as Politico reported this week, based on information from RNC sources.
Part of the reason few electors want to change their votes is because they are loyal to their parties.
“Electors generally hold a leadership position in their party or were chosen to recognize years of loyal service to the party,” the U.S. Archives writes in its explanation of the Electoral College. That tends to mean electors stay in line — as the Archives adds, more than 99 percent of electors over the years have remained true to their states’ wishes. There have only been nine “faithless electors” in the past century, according to information from FairVote (here is a list of all those electors over time).
There is a push to get enough of those electors to vote against Trump — some electors (going by the name “Hamilton electors”) have tried to swing fellow electors away from Trump and toward someone else, like Ohio Gov. John Kasich. But one problem for them is that Kasich himself has advised Republican electors not to vote for him.
So imagine the (unlikely) situation in which Trump loses 37 electors. Then the House would choose from the three candidates who get the most Electoral College votes, with each state delegation getting one vote. There are 33 state delegations that are majority-Republican right now. One could assume they’d want a Republican to win — and having a sizable number of them jeopardize a Republican presidency seems unlikely.
And one more thing: While more voters did indeed vote for Clinton, the electors are there to represent their states, not the national popular vote.
“I suspect literally no one voted for electors in November with the goal of empowering them as people to exercise independent judgment,” said Rob Richie, executive director of FairVote. “People voting for Trump wanted his associated electors to vote for him. Same with people voting for Clinton. So think expecting them to act against that mandate now is a highly questionable position.”
Furthermore, the candidates campaigned under the assumption that the system would work a certain way. If the election were purely based on popular vote, Clinton may have campaigned for more votes in Texas, or Trump may have campaigned more in Republican parts of California.
In short: It’s not crazy to think that a few electors could vote their conscience. It is, however, a stretch to think that they would sway the election.
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