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there are “risks” on both sides

What Rick Hasen is Missing

It is so rare to be able to write such a headline. But when it is true, given the rightful importance that the Dean of Election Law’s opinion has to so many, it is an important headline to write.

Rick Hasen has worried about the lawsuit that I’ve helped shepherd, which will give the Supreme Court the chance to decide whether presidential electors retain a constitutional discretion when they cast their vote in the Electoral College. I was drawn to help press this question after the 2016 election, because I thought regardless of the answer, it is an answer we should secure outside of the context of an actual election. To force the Court to resolve it in the middle of an election would be a disaster for everyone, regardless of the answer.

We were therefore fortunate that the two cases that we brought ended in a conflict, leading the Supreme Court to grant cert. My colleague, Jason Harrow, and I will argue the two cases on May 13, as the last two cases of the term.

Hasen is anxious about, as he puts it, the “high risk that the presidential election results could be thrown into chaos by a handful of rogue electors.” But what’s striking about his analysis is that it is unusually incomplete. Hasen focuses exclusively on the risks on one side of the case — namely, the risks if we win. But he ignores the risks on the other side — namely, the risks if the states succeed in claiming the right to control how electors may vote. Call this the 20th Amendment risk. We’ll return to it below.

et’s start with the risks that Hasen does try to reckon — again, as he puts it, the “high risk that the presidential election results could be thrown into chaos by a handful of rogue electors.” (emphasis added). No doubt, there is some risk that a “handful of rogue electors” could flip a result. But how much risk? Because we should think a bit more carefully about whether that risk is indeed a “high risk” — or even a substantial risk at all.

There have been exactly three elections in our history decided by the Electoral College in which the difference between the top two candidates has been less than 10 electors: 1796 (when Adams beat Jefferson by 3 electoral votes), 1876 (when Hayes beat Tilden by 1 electoral vote) and 2000 (when Bush beat Gore by 5 electoral votes). Ordinarily, “close elections” are 20 or 30 electors apart (Wilson, 23; Bush/Kerry, 35; Taylor, 36). So the danger that Hasen is pointing to is not really the risk of a “handful” of electors switching sides, but the risk of dozens, in a coordinated way, switching from one party to another.

We know that there have been extensive efforts to achieve exactly that in our history. Robert Alexander’s wonderful book, Representation and the Electoral College (2019), recounts the efforts to persuade electors in 2000 and 2016. (See especially chapter 6).

In 2000, the Bush campaign initially feared that they would win the popular vote but lose the electoral college. As Alexander describes, they therefore seeded the idea that electors should exercise their constitutional prerogative, and vote for the winner of the popular vote, regardless of how they were pledged. The Gore campaign, of course, attacked that idea, making it hard for them to embrace it, once they needed it. But there was an active and extensive campaign to persuade Republican electors to vote for the winner of the popular vote (one Republican elector reports receiving 35,000 emails). The same was true in 2016—every single Republican elector was lobbied to switch his or her vote. Nonetheless, in neither case did a single Republican elector choose to switch sides and vote for the Democrat — even though, as Alexanders’ survey data suggests, 20% (meaning 60 Republican electors) actively considered whether to switch.

Indeed, across the 23,507 electoral votes cast in the history of the Electoral College, exactly one — ONE — has switched sides and voted for the candidate from the other major party. That elector, Samuel Miles, is commonly referred to as the first “faithless” elector. But the story of Sam Miles shows just why the term “faithless” is so faithless to our tradition.

Miles was an elector from Pennsylvania in 1796. He was one of two presumptively Adams’ electors appointed under the rules specified by the Pennsylvania legislature. But his appointment was something of a mistake. Pennsylvania law required the governor to certify the appointments too soon after the election. The governor was therefore forced to certify before the votes in Greene County had been reported. He believed that Adams would receive more votes than he ultimately did. He therefore certified 13 Jefferson electors and 2 Adams electors. But when the votes were actually reported, Jefferson had prevailed in Greene County. He therefore should have gotten all 15 electoral votes.

Miles took this mistake seriously. So too did he take his job as elector seriously. Faced with the fact that he probably should not have been appointed at all, Miles voted contrary to how he was presumptively pledged. Rather than voting for Adams, Miles voted for Jefferson, leading one prominent critic to write,

“What, do I chuse Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be President? No! I chuse him to act, not to think.”

And thus was the debate about “faithless electors” born. Yes, Miles would have said, he voted contrary to how he was expected to vote. But he did so for the same reason that the Bush campaign was floating the very same idea in 2000 — to assure that the vote from Pennsylvania actually reflected the people’s will.

To state the point again — because again, it is so important to evaluating Hasen’s fear of the “high risk that the presidential election results could be thrown into chaos by a handful of rogue electors” — Miles is the only case of an elector voting in a way that could have possibly flipped a result. The other 79 presidential electors who voted contrary to how they were pledged — prior to 2016 — either did so for reasons that no one could question, or did so for expressive reasons that were, in the end, quite harmless.

So, for example, 63 of the 79, refused to vote for the candidate they were pledged to — Horace Greeley — because he had died. Greeley had won 66 electoral votes in the 1872 election. Three of them stuck with him past the end, and cast their ballot for a dead candidate. Their votes are the only electoral votes that Congress has ever rejected. (Remember that, because this is important to the bit Hasen is missing: the biggest chunk of “faithless electors” historically switched because their candidate died; and the votes of that candidate’s stubborn, or “faithful” electors were, in the end, discarded.)

That leaves 16 “faithless electors” — practically all of whom voted contrary to a pledge in order to make a political statement. The Washington State presidential elector who triggered the legislature to pass the law that led my clients to be fined, Mike Padden, was a Republican elector pledged in 1976 to Gerald Ford. In the end, he voted for Ronald Reagan. That vote signaled the direction he hoped his party would take. He was right, and subsequently elected to the state legislature in Washington and, for a while, served as a judge.

Or again, a “faithless elector” from 2004 was actually just a mistake. A “faithless elector” in 2000 was from DC; she abstained to protest DC’s lack of effective representation in Congress. In 1988, an elector tried to persuade other electors of the silliness of the whole system; she failed, and she was the only anomalous vote. All the other “faithless electors” from the 1960s and 1970s were Republicans. All the “faithless electors” from the 1940s and 1950s were Democrats (or better, Dixiecrats) — including W.F. Turner from Alabama, who refused to vote for the Democratic nominee in 1956, just 4 years after the Supreme Court had upheld a pledge for electors in Alabama, in the case, Ray v. Blair. Nothing happened to Turner, despite Ray.

In none of these cases was either the ultimate result or the Republic threatened. Indeed, in all of them, the effect was either harmless or necessary — which is actually a pretty good endorsement of the present system. At the very least, this history is not good evidence of, as Hasen describes it, the “high risk that the presidential election results could be thrown into chaos by a handful of rogue electors.” (“What about 2016?,” I hear you asking. Fear not, I’m saving that for the end.)

But maybe, you think, the system has worked so well because the electors didn’t know they were free. Here’s where Alexander’s book is so important: In fact, electors do believe that they have a constitutional discretion to vote their conscience. According to Alexander’s survey research, substantial majorities of electors

“continue to see their role as a trustee rather than a delegate. No more than 1 in 5 electors would support the automatic tabulation of votes in any of the last five elections, and just 1 in 10 electors in 2016 thought that should be the case.”

In any case, of the 23,507 votes cast for President, 9,638 were cast by electors before any state had any law that even purported to require electors to even pledge one way or another. Nine electors have voted anomalously since the first of those laws was passed; eight had voted anomalously before these laws were passed.

All this leads me to doubt the risk that Hasen fears. I’ve not always doubted it. At the start of my work on this case, I too feared the hypothetical — a repeat of 2000, but where a handful of electors actually do switch sides. But as I’ve come to study the facts, with the benefit of Alexander’s research and FairVote’s tables, I’ve come to believe that yes, there is “a risk,” but that risk is actually not substantial at all.

More importantly, that risk is far less substantial than the risk that would be created if indeed we lose in the Supreme Court. And this is the bit of the analysis that Hasen has — surprisingly — ignored.

mong the many forgotten amendments to our Constitution is the 20th, ratified in 1933, and addressing, among other things, the contingency of a potential president dying before he or she was inaugurated. The basic solution of the 20th Amendment is to give Congress the power to legislate on that contingency. And indeed, Congress has done exactly that.

But the 20th Amendment seems at first oddly incomplete. Between the moment that a candidate wins an election, and the moment when he or she is sworn in as President, there are actually three separate potential contingencies to consider, two after the Electoral College votes, and one before.

After the Electoral College votes, there is either (a) a president-elect (if someone gets a majority in the College) or (b) there is not. The 20th Amendment expressly addresses death in both cases. But in addition to a candidate dying after the College votes, a candidate could die (as presidential candidate Horace Greeley did in 1872, or vice presidential candidate James Sherman did in 1912) (c) after the election but before the College votes.

The Framers of the 20th Amendment self-consciously did not deal with this case. Not because it was oversight — indeed, it was the most common actual contingency, and, after President Harding’s death in 1923 (at the age of 58) and Robert La Follette’s death (after a third party run) in 1924, it was the contingency that was most present in the minds of anyone in the 1920s and 1930s. But the Framers of the amendment chose not to address that contingency because, as the Committee Report put it, “the electors would be free to choose a President,” so a “constitutional amendment [was] not necessary.

The 20th Amendment thus presupposes elector discretion. And yet the statutes at issue in our Colorado case, and now in Washington as well, remove any electoral discretion even if a candidate dies. Under the automatic system that these states have adopted — following the Uniform Law Commission — if a candidate dies before the Electoral College votes, the electors must still vote for that dead candidate.

So let’s think about how that might play out. Imagine Joe Biden wins in November, by taking every state that Clinton did, plus Michigan, Wisconsin and Pennsylvania. That would give him 279 presumptive votes in the Electoral College. Now imagine — God forbid, not just because it’s not nice to hypothesize about someone’s death, but because, if he is the Democratic nominee, I desperately want him to win — Joe Biden dies after the popular election but before the College votes. Under the laws that Colorado and Washington defend, the electoral votes that would have been for Biden must stay with Biden. Those laws have no death exception (a few other states do, but not them). Thus, 21 electoral votes would be cast for a person who is no more. That would mean that no living candidate would have a majority in the College, thus throwing the election into the House. What happens then is anyone’s guess. The House could do the honorable thing, and vote as the people had voted: for a Democrat. Or the House, assuming Republicans control 26 state delegations as they do now, could vote in a purely partisan way, and re-elect Donald Trump. Either outcome is feasible; both outcomes would create significant political costs.

This is the problem caused by patchwork reform at the state level to a problem that obviously requires a federal solution. I’d be the first to support an amendment that would — like the 20th — give Congress the power to address this third contingency. It seems to me perfectly sensible that the Constitution should give Congress the power to direct electors to vote for the vice presidential candidate, if the presidential candidate were to pass. But if we don’t have that amendment, then the last thing in the world that we need — especially right now — is a series of inconsistent state laws that force a result without any human standing in the middle. Given the integrity of their history, I would much rather rely upon electors in this contingency than to rely upon the unintended consequences of state legislation designed to avoid a problem that has literally never been a problem.

Or put differently: If candidates have died twice as frequently as electors have switched sides, why should we “solve” the latter problem when the “solution” only increases the threats from the former?

I’m not saying the states couldn’t get their act together, and pass laws that dealt with every contingency. I’m not saying Congress wouldn’t fudge, and do what no Congress has ever done — permit electoral votes to be recast in light of someone’s death. There are all sorts of possible ways in which this crisis could be avoided.

But given the brutal partisanship of our time, there is no reason to believe that country would prevail over party. Indeed, if I were to bet, I’d bet either party would do whatever it could to prevail, regardless of the principles of democracy.

Ok, so summarizing so far: Yes, there is a risk that if the Court confirms the constitutional discretion that electors have always had, a “handful of rogue electors” could flip the results. “A risk,” but certainly not a “high risk” — and indeed, given our recent past, and the actual failure of actual lobbyists to convince any elector to switch sides, I’d say it is a vanishingly small risk.

But there is risk on both sides. We’ve had more deaths between an election and the vote of the Electoral College than we’ve had electors switch parties. And if the states prevail before the Court, that risk is also a risk that could easily produce “chaos.”

far, all this ignores 2016. So let me end by bringing that election into this account. For of all the electors (save, perhaps, Sam Miles) who it seems unfair to slander with the term “faithless,” my clients are at the top of the list.

The electors we represent are all Democrats. They all voted, or tried to vote, for a Republican. Not for Donald Trump, but for a Republican other than Donald Trump. And they did so in a context, and for a reason, that most commentators (not Rick Hasen) just seem to have missed.

When my clients swore an oath to vote for the Democratic candidate, they were eager to support that candidate when she won the vote in their states. But when it was clear that despite winning the popular vote by more than 3 million, she was not going to be chosen in the Electoral College, my clients began to consider just what they should do. They knew there was zero chance that Hillary Clinton was going to become President. But they also knew that the people who had voted for Clinton had also voted against Donald Trump. And so the question they asked was whether there was some way to bring about a result that was not the election of Clinton, but also not the election of Donald Trump.

The strategy may seem nuts, especially in retrospect, but notice that it depended crucially upon Republicans. My clients, and many others, began speaking to Republican electors, trying to persuade them to vote not for Clinton, but for someone other than Trump. And not for no reason: Their argument was grounded on the fact that the election results did not match the democratic will. Like Miles in 1796, and like the Bush campaign was preparing to argue in 2000, they asked Republicans to act against the candidate who hadn’t actually prevailed democratically, not to benefit his opponent, but to give the House a chance to decide what should happen next.

Because had 35 Republican electors done what two Texas Republican electors did — that is, vote for someone other than Trump — then the decision would have moved to the House of Representatives. No doubt, the House was going to select a Republican, given the makeup of each state delegation. But the question my clients tried to set-up, through the cross-partisan movement they were trying to effect, was whether the House should select Trump or someone else. And so by voting for Republicans, under the 12th Amendment, these Democratic electors would be giving the House another option, whether Colin Powell or John Kasich. The House, in the end, of course, could still have picked Trump. But that “right of choice” would have been the House’s.

Thus, my clients were not trying to flip the result from Republican to Democratic. They were not even trying to force a vote in the College that would have selected someone other than Trump. My clients were trying to unite with an equal number of Republicans to give the House the choice of confirming the result that the Electoral College would have produced, or choosing someone different.

This was perhaps the only non-partisan movement within the 2016 election. These Democratic electors were trying to build a coalition with Republican electors, not to elect a Democrat; but to give Congress the choice of electing a different Republican. That non-partisan act, Washington and Colorado now argue, should now be illegal.

My point in telling this story is not to recommend what they did. It is not to endorse the idea of what they did. It is not even to say it was plausible. (Though remember Alexander reports 60 Republican electors did consider voting differently.) My only point is to evince even more clearly that the actual people who have served as electors — including those we slander with the term “faithless” — have uniformly acted not to undermine the choice of President, but to protect it, at least when contingencies have led the ordinary process to go haywire.

The idea that electors would switch sides and vote for the winner of the popular vote was not invented by Democrats. And it’s not even a crazy idea. But so far, it has failed to sway more than one elector in 23,507 votes. The other cases of discretion have either been harmless or potentially edifying. Mike Padden’s vote for Reagan (like the votes of David Bright (ME) and Muhammad Abdurrahman (MN) for Sanders in 2016) did no harm. If anything, they signaled the future of each party. And if my clients had succeeded in getting 35 more Republican electors to vote for some other Republican for President, chances are that the House would still have voted for Donald Trump. But even that would have been better than what happened: Trump would have been able to say that not only had he presumptively prevailed in the College, but he had also prevailed in the House. Indeed, so long as we have the current system, the idea of my clients might well be a good idea in inverted electors — if the “winner” is not the winner, then let the House take a second look, with the option of a compromise candidate before them.

The other outcome is harder to reckon — I concede. I’m not sure what would have happened had these electors succeeded and the House had voted for someone other than Trump. Maybe the new President would have taken a Democrat as VP. Maybe he would have launched a serious effort to end the partisan division in our nation. Or maybe the result would have been called a “coup” (as it was when Jackson won the most popular and electoral votes in 1824 but the House chose John Quincy Adams instead). I don’t know.

What I do know is that it’s just not true to say that removing this human check — in the haphazard and piecemeal way that the states have tried — presents less “risk” than keeping the existing safety valve of the existing College. There are risks on both sides. Preserving the safety valve is the lesser of the two risks.

As I’ve said, I’m eager to work with anyone to bring about an amendment to the Constitution to address this and other issues related to the College. And I don’t believe, like most, that such an amendment is impossible.

But I am certain that it should not be the Supreme Court, in their last case of the term, that should bring about a change to a system presupposed by the framers of the Constitution, of the Twelfth Amendment and the Twentieth Amendment. Such a change requires real care and real consideration about how the system hangs together as a whole. That care is not represented in the laws that Colorado and Washington ask the Court to affirm.

inally, consider one more bit of oddness oddly ignored by Rick Hasen. Though the states have argued that they’re only trying to defend “the will of the people,” they are not actually defending the idea of democracy at all. They are not arguing that present expectations should be interpreted to require that there be an election at which the people vote, and that the electors should then simply mirror the peoples’ vote. They are asking instead for the power to regulate how electors vote.

This is an important distinction — because it shows that it’s not actually “expectations” that are driving the states’ arguments at all. Every American expects their state will hold an election for President. How many know — because the Court has said it now at least twice — that state legislatures retain the power to cancel their election, and pick electors directly? According to McPherson v. Blacker (1892) and Bush v. Gore (2000), Florida is perfectly free to cancel its election (“pandemic!”) and simply select a slate of Republican electors, “expectations” be damned. Indeed, I would have been impressed if Washington or Colorado had argued to the Court that its own power should be constrained by “expectations” too, in the same way that it argues that the electors’ freedom should be constrained by “expectations,” and that therefore it should no longer have the power to do what McPherson and Bush say it could do. Neither state has made that argument.

Yet if the Court does hold that a legislature can regulate how electors may vote, what next? New York and New Jersey both have bills in their legislatures that would forbid voting for any candidate who doesn’t release his tax returns. If Colorado is right about its power, is New York and New Jersey? Why shouldn’t Wyoming forbid its electors from voting for any candidate who hasn’t campaigned in Wyoming? Or why shouldn’t California forbid its electors from voting for any candidate who doesn’t pledge to appoint justices who would uphold Roe v. Wade?

It’s not hard to see the political gain — indeed, one might be tempted to say, ala Rick, the “huge risk” — that state politicians might see from forcing their own policy preferences into “their” vote for the President. And it’s not hard to see how such a spiral in the state legislatures would then create “chaos” (to borrow another word from Rick) in the election of the President.

Of course, the Supreme Court could step in, and begin to decide which regulations of electoral votes are permissible and which are not. But from where in the Constitution would the Court find that line? Which efforts to control “electors” are legitimate, and which are not, given the foundation for this power is not “democracy” but the power — as Washington and Colorado insist — that the states have to order their minions, sorry, “electors,” to do as they wish?

Many think that the easy step for the Court — putting aside the hard question of how they’ll write the opinion — is to affirm the laws that Colorado and Washington defend. It may be the easy step. It is not the safe step. Neither is it a stable step.

It’s taken me time to get here, and that I would get here is not really surprising, given the nature of confirmation bias, but given the honor evinced by their 23,507 votes across history, I’d be much more confident entering this terrifying election trusting electors to act as the human safety valve on this process, then the politicians we would have to count on if the Supreme Court removes electors from the mix.

Whether or not that’s right, I certainly think that it is simply wrong to assert, as Rick has written, that there is a “high risk that the presidential election results could be thrown into chaos by a handful of rogue electors.”

There’s no real risk of that. There is plenty of risk going the other way.

Written by

law professor, activist.

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