Friday, December 16, 2016

"Faithless Electors" - the Legitimacy Dilemma

There is a lot of talk in Democratic/leftist/anti-Trump circles about the prospects of "faithless electors" turning the tide and keeping Donald Trump out of the White House. It appears to be technically true, as a matter of process, that the members of the Electoral College can in fact vote for whomever they wish, and that their votes (and ONLY their votes) determine who the next President of the United States will be. It is not clear, under the various and sundry state election laws, what the consequence would be of an elector voting for someone other than the candidate to whom the state's election pledged them; however, even if there are such consequences it's not clear that such laws can prevent electors from doing so, or overturn their votes if they do.

A lot of the folks pushing this idea are focused on the outcome. They know what they want: they want somebody (anybody, really) other than Donald Trump to be President. In my view, however, process is far more important than outcome, because outcomes are always temporary - processes tend to stick with us for a very long time.

This is why the Electoral College movement concerns me. A lot of folks have called for the end of the Electoral College entirely, and maybe that's a good idea. But that would take a Constitutional amendment - not at all an easy thing to do - and more importantly, we would have to agree on what process of election would replace it.

At this time in our nation's history, it's not at all clear to me that we have the ability to have that conversation. We are so focused on the outcomes of our own tribes that we have lost the sense that we all live under a common set of rules, and that those shared rules and norms matter. Not long ago, telling the truth mattered for political leaders. Yes, there was always spin and shading. But now we have an elected leader who shows a reckless disregard for the truth. He doesn't care. That's a norm lost, sometime we used to agree on that's gone now.

So if there are enough Faithless Electors to turn the tide and prevent Donald Trump from assuming the Presidency, then what? The rules may be crazy, but they're the only rules we have. If those electors throw the race into the House, does the House just turn around and elect Trump anyway? And if someone else is chosen, will that person be seen as legitimate, either by the rest of the government or by the American people generally?

To be fair, I think the legitimacy argument can be overblown, for two reasons. First, because we've become so tribal and outcome-focused, there's a fair amount of delegitimizing whoever's in the White House anyway. George W Bush and Barack Obama have both faced portions of the population who believed strongly that they were illegitimate occupants of the Oval Office. Both managed to execute the duties of the office anyway. Because Hillary won the popular vote, there are folks who are already inclined to see Trump's victory as illegitimate. That goes with the territory.

Second, we tend to have a bias towards imbuing whatever happens with a measure of legitimacy, largely because the consequences otherwise are potentially large and potentially disastrous. Yes, rules can be imperfect; yes, systems can be weak. The preponderance of evidence is that George W. Bush didn't really win Florida (and therefore, the White House) in 2000, but once we settled the legal issues surrounding recounts we never really looked back. This is true because nobody could really envision any alternatives.

This is both the danger of messing with the Electoral College, and the defense against it. If we upset the apple cart, we risk creating enormous uncertainty. As deadlocked as the government is (mostly in Congress), we could risk further crippling it by throwing the executive branch into chaos, with no clear leadership. And we risk opening a massive can of worms that I don't think we, as a nation, are ready to deal with.

So for those participating in the Faithless Elector movement - be careful what you wish for. There may be worse outcomes, either now or down the road, to a President Trump.


  1. Thanks for the post Bill - interesting stuff. Just a point of order from a fellow political science nerd, changing the electoral college does not necessarily require a constitutional amendment. The states are free to apportion their share of electors however they see fit (Maine and Nebraska, for example, allocate on the basis of which candidate wins thew vote in congressional districts). It would, therefore, be possible for California, say, to pass a law allocating its electoral college votes entirely proportionally (i.e. Clinton's 60% of the vote gets here 60% of the EC votes; Trump gets that remaining 40%). Of course this is not likely to happen because proportional allocation by CA would give "free" votes to the Republican candidate, so it is unlikely that CA would choose to do this unilaterally. However, there is a more plausible route currently being taken by several states (11 and counting), which is to allocate all the states EC votes to whoever wins the popular vote across the US as a whole. Hence, CA, which has signed on to this initiative, would allocate all 55 of its votes to the US popular vote winner, regardless of who won the vote in CA. Critically, the initiative does not take effect until enough states have signed up to reach the 270 threshold. At that point, whoever wins the popular vote in the US has a guaranteed EC majority and wins, regardless of what the other states do. This initiative is called the "National Popular Vote Interstate Compact" (NPVIC)
    I think this is a good way to go because it can be achieved by state law and does not require a constitutional amendment (which is not going to happen)

    1. It's true that you can change the allocation of electors in a number of ways without amending the Federal Constitution. What you can't do is abolish it altogether, which is what some folks have been talking about doing. But there are certainly other options - although none seems to have gotten much traction.