The Supreme Court ruled 9-0 that states, like Washington, can punish electoral college voters who don’t vote the way they want them to. This opinion disenfranchises members of the electoral college, violates their freedom of conscience, and further eviscerates the Founders’ vision of the purpose of the Electoral College.
In the summer of 2016, three Washingtonians were nominated as presidential electors for the Washington Democratic Party. They ran pledging to vote for the party’s nominee. But when the electoral college convened after the 2016 election, all three broke ranks by voting for former Secretary of State Colin Powell for president and splitting their votes for vice president among three senators, Maria Cantwell, (D-Wash), Susan Collins, (R-Maine), and Elizabeth Warren (D-Mass.).
Overall, ten members of the electoral college voted in a way that was different than what their state told them to do after the 2016 election. The so-called “faithless elector” issue is a material question since five of the 58 presidential elections in American history have been decided by less than 10 electoral votes, most recently in 2000 when President George W. Bush defeated Al Gore by just five electoral votes.
Washington will now, thanks to the Supremes, fine these three so-called “faithless electors” $1000 apiece for the impertinence of voting for someone other than Hillary Clinton in 2016, which they apparently did to help Trump.
MSNBC noted that if electors are permitted to vote as they wish in a close race, they “could potentially have the power to decide who wins.” Well, yeah, that’s kind of the idea. Constitutionally, states can regulate only how electors are chosen, not how they vote. The states have no constitutional authority whatsoever to order them to vote for a particular candidate.
In America, we do not tell people how to vote. Especially, we do not force them to vote for a candidate against their own will. When voters go into the booth on election day, the matter is between them and God, even if they promised to candidate A undying love and fidelity. People change their minds all the time about whom they support, and electors maintain that same freedom and autonomy. If they promise to vote for Candidate A but then switch and vote for Candidate B after entering the booth, the issue is between them and God and no one else.
Harvard’s Larry Lessig puts his finger on another significant constitutional problem: once an elector is chosen by the voters of his state, he is now functioning in a federal role when he meets with other electors as the Electoral College. He is beyond the jurisdiction and reach of the state at that point.
Regressives want to do away with the electoral college altogether, and make the presidential election a straight up democratic affair, an idea that the Founders avoided like the plague. The Founders believed in a representative democracy, a republic, not in a democracy. In a republic, we choose the people who choose a president for us rather than picking a president ourselves.
Our votes in November are not actually for a president, but are votes for electors.
Electors are the only ones constitutionally eligible to cast votes that count in a presidential contest. It’s a myth that the people choose the president in November; no, we choose the people who will choose a president for us.
Washington state argued in its brief that if faithless electors could not be punished, that “would mean that only 538 Americans — members of the Electoral College — have a say in who should be president.”
The problem with Washington’s argument is that these 538 Americans don’t just “have a say” in the decision, they ARE the deciders. They don’t just participate in the process of choosing a president, they actually do it. That’s exactly how it’s supposed to work, according to the Constitution the Founders crafted for us.
It is a true fact that only 538 Americans choose our presidents. We get to choose those 538 Americans at the ballot box in November, but then when they vote, they get to vote for whomever they want. That’s why they’re called “electors” and not “puppets.”
That’s why we must choose carefully in voting for our electors. The simple truth is that the Constitution assigns to the states the selection of their own electors, but their authority stops right there. Electors are free agents once they are selected. As Harvard professor Lawrence Lessig said, “There is no mechanism for state officials to monitor, control, or dictate electoral votes. Instead, the right to vote in the Constitution and federal law is personal to the electors, and it is supervised by the electors themselves.” Well, that’s the way it actually used to be, right up until this week, when the Court decided it will make the rules rather than the Constitution.
Since 1832, virtually every state in the Union has chosen electors by popular statewide vote, rather than congressional district by congressional district, which is ideally how they should be chosen. This is because each congressional district essentially has one electoral vote. Maine and Nebraska still award electoral votes by district rather than winner-take-all statewide.
Congress has always counted the votes of faithless electors just the way the electors cast them. In fact, Congress has accepted every renegade vote cast in the nation’s history. It’s happened more than 150 times. None of those independently-cast votes changed the outcome of an election, but there’s no guarantee they won’t in the future. As Justice Steven Gonzalez of the Washington state supreme court noted, the Constitution contemplated that electors “would be free agents to exercise an independent and nonpartisan judgment as to who was best qualified for the nation’s highest offices.”
The Tenth Circuit Court of Appeals carefully examined the Constitution as the Founders wrote it and concluded that electors are “free to vote as they choose.”
The Constitution, they wrote, “does not provide the states the power to interfere once voting begins, to remove an elector, to direct the other electors to disregard the removed elector’s vote or to appoint a new elector to cast a replacement vote.” Bully for the judges on the Tenth Circuit.
The Supreme Court should have responded to Washington with a resounding “No.” Then perhaps we could start getting back to the place the Founders intended, in which we have not just one presidential election but 538 separate elections in which electoral college candidates seek to convince us they have the maturity and judgment to be entrusted with choosing our next president. That’s the American way.
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