Isn’t more chaos in the presidential election just what you wanted?
Well, thanks to the decision by the 10th Circuit last week (that each state’s presidential electors cannot be required to vote for the state’s popular vote winner), that may be what we just got handed. We use the popular vote for every single political race in the country except for the presidential election. To determine who wins the presidency, we use the Electoral College. So, when we vote for president, really what we’re doing is voting for which set of electors get to cast the final vote for president/vice-president. If the Democrat wins the popular vote in the state, we use the Democratic electors; if the Republican wins, we use the Republican electors, etc.
What’s important to remember here is that the Constitution does not stipulate how electors are chosen, or how they’re supposed to vote, so that’s left up to each individual state. (Here’s the 12th Amendment for your reference.)
29 states (plus DC) have laws stipulating how the electors must act, while 21 states do not. But even in the states without laws, the parties themselves are empowered to exact consequences should a presidential elector not vote the way that they’re expected to, like being expelled from their party position or imposing a fine.
For these reasons, our country has had few faithless electors–electors who vote for a different candidate than the one they are pledged to support.
Of the 167 faithless electors in our history:
– 71 voted for a different candidate because their chosen candidate had died since election day
– 29 swapped their presidential and vice presidential candidates, which are considered “abnormal votes”
– 67 cast a vote for a different candidate due to personal objections
Only 17 of those faithless electoral votes were cast between 1900 and 2016, and 7 of those were in 2016. (Source)
So after a long period of relative calm, and electors acting the way they’re expected to, 2016 ended up being a catalyst to behaving differently, and this new court decision just may have poured gas on this tinderbox. Bloomberg just published an opinion piece about what a terrible decision this new 10th Circuit ruling is: Appeals Court Opens the Door to Electoral College Chaos
The kicker is this:
“The fact that a court has said that faithless electors have a right to break faith with the voters is an obvious invitation to future electors to break faith.”
I wish I could recommend an action for each of to take, but right now, I’ve got nothing. This decision is expected to get kicked up to the Supreme Court, but we won’t know that yet for a while. And then we just have to wait.
So in the meantime, let me say this one last thing. I had many respond to my tweet about this issue last week with “Well then, if they can just vote the way they want to, why should we even bother voting at all?” I can’t tell you how much that attitude bothers me. Are you a voter or not? We vote because that’s what voters do. We vote in every election, and I mean every election (primaries, general, special, off-cycle, even one-off elections on random months to vote for a county commissioner.)
We vote because what recourse do we have if the electors then vote exactly the way they’re supposed to in 2020? Cry and say “but I thought our vote didn’t matter anymore?” No. We cannot ever allow anything to dissuade us from casting our votes. Stand up and speak your mind: your vote is your voice and we need everyone to speak up. No matter what.