by Raffi Piliero
Elections – and how votes are counted – should be eminently predictable in a democracy. Yet we’ve designed a system where 538 people can overrule the other 327,000,000.
If you ask the average American if they know the function of the Electoral College, around 43% will be stumped. There hasn’t been research about the extent of the average citizen’s knowledge about faithless electors, but I’d wager the number who are unfamiliar with the concept would be orders of magnitude higher. This is unfortunate, as this concept, one very rarely written about, discussed, or debated, has the potential to create a range of undesirable effects on our elections.
Many have argued that the Electoral College should be eliminated, and many have argued that it should remain. I’m not going to re-litigate these arguments here, because it is likely to remain for the time being. However, I will argue that within the Electoral College exists a strange tradition where electors can defect from voting in line with the results of their state’s popular election, and that any arguments claiming this to be an institutional feature, and not a bug, are hopelessly antiquated.
Before I delve into what faithless electors are and why they shouldn’t exist, I will first briefly sketch how the Electoral College arrives at decisions, and how faithless electors fit into this process. In an electoral system characterized by a popular vote, people vote and whoever wins the greatest number of votes wins the election, with zero caveats. In contrast, under the Electoral College, citizens vote, and the relevant question is not how many net votes each candidate receives, but which candidate receives the most electoral votes; the first to receive a majority of the 538 electoral votes (270) wins.
Each state is given a number of electoral votes based on the aggregate number of seats it has in the Senate and the House of Representatives. Based on the current totals, these 538 electoral votes are cast by 538 real, living, breathing people who cast them for each state. Typically, the electors in each state cast all the electoral votes in favor of whoever won the majority of the popular votes within that state. We typically take for granted the last part of the syllogism I’ve outlined above; whoever wins a majority of votes in a state should win the state. However, faithless electors offer the potential to disrupt this crucial linkage. Why? Because they don’t legally have to vote in concordance with the voters in their state
In short, “faithless electors” refers to those members of the Electoral College who choose to defect and to vote differently from the majority of the voters in their state. At the federal level, this is entirely legal. Article II, Section 1, Clause 3 of the Constitution specifies how elections should be calculated, and the process by which electors should cast their decisions. Within the Constitution, there is no regulation of “pledging”, or a limit on how electors should cast their vote, or for whom. The absence of any such limitation was intentional; the Founding Fathers wanted to ensure that electors were free to exercise independent judgment, because they were leery of unbridled democratic power in the hands of ordinary citizens, and wanted to ensure that an esteemed, knowledgeable elite of electors could serve as a fail safe protection against it.
The possibility of faithless electors is not universal; 29 states (and the District of Columbia) have laws banning them, mandating that electoral votes must be cast in favor of the winner of the popular vote within the state. However, in the other 21 states, it is legally permissible for an ordinary citizen-elector to go rogue, elevate their vote over that of millions, and subvert the core principle of democracy.
The first obvious reason why electors should have to cast their votes for the winner of the statewide popular vote is because the primary argument against it, elitism, has been out of fashion for nearly all of the more than 200 years since the country was founded. While still a representative democracy where we vote for those to represent our opinions, the opinions of citizens are still paramount, and we’ve reached a consensus over the years that the people should have a loud voice in the government that represents them. Electors being able to vote separately from the results of the statewide popular vote was, as mentioned, designed to ensure the most educated and knowledgeable citizens had the final say.
Yet today, electors chosen are functionally no different from ordinary citizens; electors are chosen by political parties in each state, who nominate or vote on slates of electors, whose qualifications typically are mere affiliation and dedication to the political party of the state While this screens out those who likely have no knowledge of the process, these electors are hardly distinguished elites who are eminently qualified to decide an election alone. Nor would this be desirable; we’ve moved past the days when candidates and races were so overtly fixed in smoke-filled rooms by party elites, and democracy is all the better for it, leaving zero reason to preserve an antiquated element of such a system.
The second main problem is that the potential for electors to defect undermines the predictability of elections. Specifically, faithless electors hold the ability to cast all or part of a state’s electoral votes for a candidate who did not win the popular vote You’ve probably never heard of Robert Satiacum, Bret Chiafalo, Baoky Vu, and Chris Suprun; yet, these four electors in the 2016 election reportedly had considered voting their consciences, irrespective of the results of the statewide popular vote. Satiacum and Chiafalo were Democratic electors from Washington, diehard supporters of Bernie Sanders who couldn’t tolerate the thought of supporting Hilary Clinton; Vu, an immigrant and Republican elector from Georgia, didn’t believe he could ethically cast a vote for Donald Trump.
All of these political opinions are defensible, and ones that citizens can certainly hold; however, the proper forum to effectuate them should be at the ballot box, where they cast their votes on a level playing field with their fellow citizens, not by invalidating a slew of equally valid, democratically reasoned opinions.
While thankfully, no election outcome has yet been decided based on the votes cast by a faithless elector, the possibility always remains that one or more ordinary citizen-electors could go rogue and invalidate a slew of other votes.
Indeed, defections are common; there have been 167 faithless electors in U.S. history. Electors in 2016 alone voted for candidates as varied as John Kasich, Colin Powell, and Faith Spotted Eagle. As mentioned earlier, a majority of states have laws against faithless electors; while the decision to allocate electors is allocated to states, there is zero compelling reason why the remaining states should not join them, resulting in a de facto ban on faithless electors nationally.
A constitutional oddity at best and a design with the potential to nullify millions of votes at worst, the system of faithless electors is a ticking time bomb waiting to go off at the least inopportune time; to hand the election to someone who got a minority of the vote, shattering the faith of citizens in electoral accountability and democracy.
Raffi Piliero is a student at Georgetown University and a recent intern with Rep. Eliot Engel (D-NY).