Some states argue they should be able to force the hand of unfaithful electors. Their arguments are exactly backwards.
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The Supreme Court is poised to rule on “unfaithful electors,” those chosen by a state to represent them in the Electoral College, and pledged to vote as the state did, but who choose to vote otherwise.
In the 2016 election, three electors in Washington State voted for Colin Powell for president instead of Hillary Clinton, who won the state’s popular vote. Washington State fined each of the three $1,000. Likewise, a Colorado Democrat elector decided to vote for John Kasich. He refused, and the state replaced him. His appeal, approved by the 10th Circuit Court, is the subject before the Supreme Court.
The state of Colorado argues they should be able to force the hand of its electors, even to the point of reversing their decisions should they vote in defiance of their states. In a petition to the Supreme Court, Colorado stated that “Unelected and unaccountable presidential electors should not be allowed to decide the presidential election without regard to voters’ choices and state law.”
I feel the petition has this exactly backward. It is Colorado’s actions that are wrong and contrary to the specific intent of the Constitution. The electors, who were literally elected by the voters, have an obligation to vote as they see fit: to nullify that vote would be unconstitutional. The Founding Fathers specifically designed the Electoral College as a buffer between the citizens and the vote.
Whether you agree with the sentiment or not, the Founders feared demagogues exploiting the ignorance of the mob and riding popular opinion to victory. That’s why they didn’t write the Constitution to include true democracy. They put in a safety valve: the people vote not directly for a president, but for a slate of electors.
In the absence of compelling reasons, the understanding was that they would vote for the choice of the state. However, in the face of a potential dictator or tyrant, the only thing standing in his path to ultimate power would be the conscientious electors.
To act as Colorado has, in canceling the vote of the unfaithful electors and replacing them with the “correct” votes, would be not only undemocratic — it’s anti-democratic. What is the point of assigning electors to choose a president if you don’t give them the freedom to vote? That’s no better than the rubber-stamp legislatures of Saddam Hussein. It’s not merely un-American — it’s anti-American.
Furthermore, it’s not true that the electors are “unaccountable,” any more than any other elected official. How do we keep our elected leaders honest? How do we treat those who fail to keep campaign promises? We don’t vote for them again. Certainly, those unfaithful electors can expect never to be selected for the honor again. That alone is punishment enough, and sufficient reason that an elector would not take this step unless conscience required it.
In the case of Washington, state law requires electors to pledge to vote for the candidate of their party. Those electors who don’t are subject to $1000 fine. I find this to be an acceptable compromise. It’s a symbolic penalty for failing to vote the party line. I cannot say the same for Colorado’s draconian steps of vote nullification and removal. I hope the Supreme Court recognizes this is not only wrong but unconstitutional.
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Richard in Japan is the nom de plume of Richard Schwartz, America’s greatest living unproduced screenwriter, he lives and works as an English teacher in Tokyo. You can follow him on Facebook.
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