A Modest Proposal To Change the Electoral College
Jan. 6, 2021, taught all Americans to pay close attention to the details when it comes to the presidential selection process. Many learned that the election was not over on Nov. 5 and that all popular votes will be translated to electoral votes when the Electoral College meets on December 17. Members of the Electoral College are real people and my research has shown that their votes should not be taken for granted.
Sometimes these electors go rogue and do not vote as expected. We have witnessed so-called faithless electors in 10 of the last 19 elections, with 2016 seeing the most in a century. The “Hamilton elector” movement spurred a Supreme Court case (Chiafalo v. Washington) that was supposed to settle whether or not electors could use their discretion or whether states could bind electors to their state’s popular vote. In a unanimous decision, the court ruled that states can indeed impose requirements on electors to remain faithful. No need to worry about faithless electors any further, right? Wrong.
Just 22 states explicitly prevent faithless electors and cancel their votes. This amounts to 320 electoral votes. Sixteen states prohibit faithless votes, but have no mechanism to cancel those votes once they have been cast. This amounts to 112 electoral votes. Thirteen states, holding 106 electoral votes, have no laws prohibiting faithless votes. So although states have the ability to fully prevent faithless votes, more than 40% of all electoral votes needlessly remain under threat from potential faithless electors. It is my hope all states adopt laws to prevent faithless electors by the 2028 election.
Swing states such as Georgia and Pennsylvania have no prohibition on faithless electors. Likewise, Wisconsin and Maine have laws prohibiting faithless votes, but have no recourse to cancel their votes.
I have been surveying members of the Electoral College for over two decades, starting with the 2000 assemblage. In that election, George W. Bush lost the national popular vote, but narrowly won the presidency with 271 electoral votes (it takes 270 to win a majority). He won the decisive state of Florida by just 537 votes out of nearly 6 million votes cast.
In that survey, two Republican electors disagreed with a question asking whether Bush was elected legitimately and two more indicated they were unsure. Two of these four electors were from the contested state of Florida. At least a few Republican electors were uneasy about casting their votes for Bush. Had Bush lost two of these electors, the contest would have been thrown into the House of Representatives. Incidentally, in 2000 we did have one faithless elector among Gore’s contingent who abstained to protest the lack of voting rights in Washington, D.C.
Since 2004, my surveys have directly asked electors whether they gave any thought to voting contrary to expectations. From 2004 through 2012, approximately 10% of all electors considered voting contrary to expectations. In 2016, 1 in 5 Republican electors gave some consideration to becoming a faithless elector.
In that election, a major campaign was undertaken to have electors support a unity candidate and throw the election to the House of Representatives, denying both Donald Trump and Hillary Clinton an Electoral College majority. Although there was an audience for doing so, the Hamilton elector movement ultimately failed. Two Republican electors did defect and 5 Democratic electors chose the faithless route. It was the Hamilton movement that inspired the Supreme Court to hear arguments pertaining to elector fidelity. In Chiafalo v. Washington, the justices unanimously decided that states have the power to bind electors.
While the 2016 Hamilton movement was the most public, I have found that regular campaigns occur to lobby electors to change their votes during the interregnum period from November to December. In 2008, more than eight in 10 electors were contacted to change their votes. Most of these “Electoral College lobbyists” argued that Barack Obama was ineligible to serve as president, falsely claiming he was not an American citizen. In 2016, every single Republican elector who responded to my survey was lobbied to change their vote. The 2020 election was an exception, as just 11% were contacted to change their vote and only two electors considered defecting (both of whom were Republicans).
In many ways, electors are like vestigial organs. You forget they exist until there is a problem. Like the appendix, the damage done if something goes wrong can be disastrous. At worst, faithless electors could change the outcome of an election. (For those who believe that this is needless hand wringing, faithless electors denied a majority to vice-presidential candidate Richard Mentor Johnson in 1836, forcing the Senate to determine the winner through a contingent election. They ultimately chose Johnson to serve as vice president.) At best, faithless votes fail to accurately translate popular votes to electoral votes, disenfranchising citizens whose votes are negated by faithless electors. At a time when faith in government is already shaken, this would appear to be an unnecessary obstacle for voters.
Indeed, the Supreme Court’s decision permitting states to bind electors represents an effort to avoid chaos in the selection process. While the court was decisive in its verdict, the fact remains that the unnecessary potential for chaos will persist until all states take action to bind electors to the popular vote of their states. Until then, the likelihood of Electoral College lobbying will continue and the possibility of chicanery in the Electoral College remains. In a close contest, these individuals could unnecessarily wreak havoc upon the presidential selection process.
While binding electors is a small change, it could prove critical in a closely divided election.