The Electoral College Time-Bomb

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Electors from Illinois voting for President and Vice-President in 2016.

After Donald Trump’s surprising win in 2016, attitudes towards the electoral college have tended to come down along party lines, with Republicans supporting it and Democrats demanding its removal. Republicans argue that the electoral college gives much needed power to low-population states, allowing them to assert themselves in disagreements with higher-population states. Meanwhile, Democrats have attacked the electoral college as an undemocratic idea that has outgrown its usefulness. But no one seems to be concerned about an aspect of the electoral college that could have an enormously disruptive effect on American democracy. The simple truth is that unless changes are made, the system designed by this country’s founders could be used to subvert the will of the people.

The Electoral College

The electoral college is made up of 538 individuals known as “electors.” These electors are chosen on election day, with the vast majority of states awarding all of their electors to the winner of the state-wide popular vote. The political parties within states are responsible for selecting a slate of electors who will then go on to the electoral college if that party wins the presidential election in that state. While this process can differ depending on the state in question, generally, political parties pick loyal members of their own party to serve as electors.

Faithless Electors

The flaw in this system is that the electors who meet to actually vote for the president are not legally bound to vote for the presidential candidate that the people of their state selected. Nor are they limited to the choice of the two major party candidates. And while some states have laws that invalidate the votes of faithless electors, a recent ruling in federal court declared that such laws are unconstitutional. A more recent ruling upheld a Washington law that punished faithless electors with a $1,000 fine.

Some claim that it’s far-fetched to believe that a loyal member of a state’s political party would abandon the party’s — and the people’s — choice for president, but 2016 saw a troubling increase in the number of faithless electors. Seven electors chose to abandon their home state’s democratic choice for President and vote for other candidates, the most since the electoral college began voting for President and Vice-president separately in 1804. In fact, I could find only two other elections with more than one faithless elector on the Presidential ballot: 1808 (6) and 1832 (2). (Faithless electors have been far more common when it comes to selecting Vice-presidents.)

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This map illustrates a plausible path to a tied election. One elector could potentially decide the outcome.

But it gets worse. Three other electors voted against the will of the people in their state but had their votes invalidated by state law. Since those laws have now been struck down, the total number of faithless electors in the 2016 election is ten — ten electoral votes that were effectively stolen from American voters in 2016. Thirty-three states and the District of Columbia have ten electoral votes or fewer.

It doesn’t take much imagination to see how the electoral college could create chaos. In a close election, it would take only a handful of faithless electors to change the result. Even electors who defect to some third candidate as a form of protest can swing the election. If no candidate reaches 270 electoral votes, the president is selected by the House of Representatives, with each state’s delegation getting one vote. Even though Democrats currently control the House of Representatives, a vote by state delegation would almost certainly result in a Republican victory.

In the painful moments after a close loss, it may be tempting for either side to lobby electors to abandon their pledged candidate, but such short-term thinking only leads to long-term destabilization. And a rush to change long-established norms for immediate gains in power can have profound unintended consequences. In the wake of the 2016 election, many opponents of President-elect Trump argued that electors should disregard the votes of the individual states and elect Hilary Clinton instead. Not only were these arguments ultimately ineffective, but they may have been counterproductive since Clinton lost more electoral votes than Trump did. Nothing was gained in this attempt.

But even if such campaigns had managed to dislodge enough electors for Clinton to win the presidency, the upheaval unleashed on the nation as a result would likely be devastating. Far-right groups would have certainly used the mass outrage to provoke and promote the civil war that they so desperately want anyway. A similar fate would likely befall the country if Republicans managed to wrestle away the presidency at the electoral college.

Outside Influence

There are many plausible scenarios where the presidency is decided by one or two electors. In such cases, the results of the election could come down to the votes of two people who no one in the country has ever heard of and who are unaccountable for their decisions. If enemies — foreign or domestic — of a stable American democracy wanted to throw the nation into chaos, they wouldn’t need to hack computer vote counts or exploit weaknesses in voting machines. They would simply need to coerce two electors into switching their votes.

Imagine a scenario where China prefers one candidate over the other. It could easily afford to bribe electors in order to get the outcome it desires. Most electors will likely be able to resist such an offer, but will all 270 of the winning block do so? It’s not wise to bet our democracy on such an outcome.

However, because of the scrutiny that individual electors would receive if they vote against their pledged candidate in a close election, it’s unlikely that a foreign adversary would choose to bribe an elector. A hostile nation would be much more likely to target electors with some sort of blackmail. It would be trivially easy for Russia to access the personal records — including emails and texts — of electors and dredge up potentially embarrassing or criminal behavior that could be used against them. Electors in such a position will likely be unwilling to contact federal law enforcement and may continue to refuse to cooperate in the intense spotlight after a surprising electoral college result.

Undoing an Election

Any electoral college vote that produces a different outcome than that of election night will certainly face legal challenges, but anyone who thinks that the Supreme Court will step in and restore the “rightful” winner might be disappointed. There is a long history of the votes of faithless electors being accepted by Congress and it would be extremely difficult for the Supreme Court to create an argument to invalidate an election. It’s not even clear if the court would do so if a crime such as bribery were involved.

Similarly, Congress could refuse to accept the results of the electoral college vote. According to the National Archives, electoral votes can be challenged. Both chambers of congress must agree to invalidate the votes. But it’s unclear exactly what would happen if the votes were invalidated.

Even if congress or the courts swoop in to preserve the original electoral vote count, the resulting damage could be widespread and lasting. Whichever side loses out in the end will feel that the results are illegitimate, potentially widening the already significant rift between the right and left. Uncertainty surrounding the election could plummet the nation into a recession, or worse.

Fixing The System

To be clear, the likelihood of one or more faithless electors altering the outcome of the electoral college is tiny, but the risks are large and uncertain. Those who want to see an end to electors and a move to a simple popular vote might see this flaw as a chance to push for a complete overhaul of our electoral process. However, since such drastic change is unlikely to happen, it makes more sense to propose a solution that can muster bipartisan support.

Unfortunately, there is no easy fix. Electors are required, and it’s unclear if states can force them to vote a certain way before the vote is cast. Punishments after the fact may serve as deterrents, but they merely lower the probability of a disaster. They can’t prevent one entirely.

It is unlikely that any legislation addressing faithless electors will be passed before this November’s elections. In June, however, the Supreme Court will take up a case in an attempt to settle some of these questions. Usually, the high court works slowly and isn’t known for making sweeping changes. It is hard to imagine that many states are undertaking any efforts to protect the will of the people.

And where does that leave us? All we can do is hope for an electoral college margin that’s large enough to cover any attempts by faithless electors to undermine democracy as we know it. Keep your fingers crossed.

Writer from Memphis, TN

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