It would be a highly unusual move, but that doesn’t mean it’s necessarily a bad idea.
By Seth Masket
Massachusetts Secretary of the Commonwealth William Galvin, center, carries a ballot box containing the 12 Massachusetts electoral votes for Vice President Al Gore during the Electoral College voting on December 18th, 2000. (Photo: Pool Photo/Getty Images)
We’re now less than a week from when the Electoral College will cast its votes in the presidential election. Before this year, the idea that large numbers of electors would vote for someone other than their states’ winners would have been pretty absurd. This year, it’s a possibility. But is it even a good idea?
On its face, the prospects of enough electors defecting from Donald Trump to deny him the presidency seem pretty remote. Electors are selected for their commitment to party. They are the hard core. For the most part, these electors have worked for years in party politics and they hope to continue doing so for many years to come. Beyond some state rules that create penalties for unfaithful electors (which usually only assess small fines and may actually be unconstitutional), there are solid political reasons why unfaithful electors are very rare.
Yet, at least outside of political fiction, there has probably never been a better election for electors to go against what their states’ voters wanted. Recent revelations by the Central Intelligence Agency that Russia actively engaged in this very close election to advantage Trump, and that Russia maintains leverage over him with unreleased information, call into question the legitimacy of a Trump presidency. Add to that Trump’s erratic and destructive behavior over the past month, the fact that nearly three million more voters preferred his opponent to him, his work to undermine relations with China, the fact that he considers his own uninformed opinions about international security superior to the evaluations of the nation’s intelligence agencies, and the near certainty that he’d be in violation of the Constitution’s emoluments clause on the day he is sworn in, and you really don’t get a more appropriate opportunity for Republican electors to rethink their states’ choice.
Plus, arguably, this was entirely the purpose of the Electoral College. It’s important to remember that, according to the Constitution, the presidential election has not yet taken place. Electors for this task have been chosen, but they have yet to cast a vote. At least according to Federalist 68, electors are not supposed to be a rubber stamp for their states. They’re supposed to investigate, deliberate, and render a decision:
[T]he immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. 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 to such complicated investigations.
Of course, this hasn’t been the way the Electoral College has been employed. Yes, there have been a few cases of unfaithful electors, but there’s almost no history (OK, maybe 1876) of actual deliberation occurring or of enough electors defecting to change the outcome.
Indeed, this is the main argument being used at this point against the idea of unfaithful electors: Electors casting their votes commensurate with their states is a longstanding norm in our country that shouldn’t be tampered with, especially after the campaigns have been run and the voters have already weighed in. This is certainly a defensible position. Megan McArdle argued as much on Saturday morning.
But here’s the thing. It’s 2016, and norms are dropping like flies. The United States Senate Republican majority has refused to consider a replacement for a Supreme Court justice who died 10 months ago, simply because they want someone other than Barack Obama to name his successor. The Republican Party nominated someone with no political or military experience for the first time in its venerable history. That nominee ran on a campaign of racial- and gender-oriented insults, promised to jail his opponent, invited a foreign power to hack that opponent’s campaign, has proferred unsubstantiated claims of voter fraud, and has vowed to maintain business ties while serving in the White House. None of these things were considered remotely acceptable prior to 2016. If you’re OK with these considerable norm violations, then you probably need a better reason to oppose unfaithful electors than “That’s just not the way we do things.”
And, indeed, there is work afoot to change some electoral votes. Some Democratic electors have made entreaties to Republican ones, offering to cast their vote for a Republican other than Trump if their counterparts will do the same. And at least one Texas Republican elector will not vote for Trump. Yet let us suppose that enough electors actually abandoned Trump to deny him an Electoral College victory. What would that mean? It could go in quite a few different directions.
If no candidate had a majority of the Electoral College vote (e.g.: roughly 40 Republican electors join with some Democratic ones to vote for John Kasich, Mike Pence, or someone else), the election would go to the House of Representatives. Trump could well prevail there, but it’s not certain he would; they could decide to vote a compromise candidate. Or you could have an admittedly unlikely situation in which 40 or so Republican electors defect to Hillary Clinton and make her president.
In these or many other situations, you have a new president being chosen whom voters did not choose on Election Day. This would create a legitimacy crisis for the new president. It would validate every fear Trump raised during the campaign that our election systems are rigged and voters are not getting what they want. At best, this would lead to mass disillusionment and a crisis of faith in American democracy. Other possible outcomes are far worse.
It is obvious that would be a terrible situation. It is not obvious that this is a worse situation than the one we already face.