Faithless Elector Watch: Ask Doctor Faithless!

As Chatterbox has noted before (see also these pieces by Matthew Miller and Gregg Easterbook),if only three Bush-pledged electors switch their votes to Gore when the Electoral College meets Dec. 18, Al Gore will be elevated to the presidency, rendering irrelevant all previous machinations by Florida canvassing boards, Florida state judges, the Florida State Legislature, and the U.S. Supreme Court. The possibility that “faithless electors” acting within the law (though outside the bounds of polite society) could make Gore president has drawn official opprobrium from Gore, but it has fired the imaginations of Democratic consultant Bob Beckel (who has suggested he’s only really advocating electoral abstentions), Daniel Schorr, the Coalition Coalition, Citizens for True Democracy, and some visitors to the E The People Web site. Bush electors have been bombarded with calls from journalists and political activists asking how they intend to vote when they gather in 50 state capitals and the District of Columbia. What they aren’t getting is much good advice on what they should do. So Chatterbox has created an advice column for them. The questions are made up, but the answers are not.

Dear Dr. F.,

You claim that the breaking of an elector’s pledge is perfectly legal. But Section 163-212 of the North Carolina General Statutes says that a violation of my pledge would cancel my vote, require the other electors to replace me, and subject me to a $500 fine. Are you trying to get me in trouble?

Restless in Raleigh

Dear Restless,

Gotta admit, that’s one tough-sounding statute! You have to pay the $500 fine even if you simply fail to show up and don’t have a good excuse! (That happens all the time, incidentally, and the electors are hastily replaced.) The fine’s actually a bit stiffer ($1,000) in Oklahoma, and in New Mexico violating your elector pledge is a felony!

But there’s a pretty solid consensus within the legal community that the laws in 26 states and the District of Columbia banning electoral faithlessness aren’t worth the paper they’re printed on. That’s because they’re at odds with Article II of the U.S. Constitution, which spells out voting procedures for the Electoral College. As the U.S. Supreme Court demonstrated earlier this week, it gets very tetchy when it thinks state governments are ignoring the U.S. Constitution! Although the Supreme Court has ruled that political parties may require electors to pledge to vote for the party nominee, it has never ruled on whether those pledges are enforceable by law. More to the point, in more than 200 years of American history, no presidential elector has ever been prosecuted for faithlessness.

Short answer: If you go faithless in North Carolina, you may have to hire a lawyer, but your vote will almost certainly be counted in the Electoral College (provided it isn’t disqualified by the U.S. Congress–more on that later).

Remember, too, that 24 states don’t even try to penalize faithless electors. For a complete inventory of which states do and don’t outlaw electoral faithlessness, click here.

Dear Dr. F.,

If I go faithless, won’t that make me some sort of freak? I hear that electoral faithlessness is extremely rare and always the act of some right-wing head case.

Tormented in Topeka

Dear Tormented,

Electoral faithlessness is not rare. In modern times, it is routine to see an elector go faithless in presidential years. There was electoral faithlessness in the elections of 1948, 1956, 1960, 1968, 1972, 1976, and 1988. (Prior to 1948, the only undisputed instances of electoral faithlessness occurred in 1796 and 1820.) Moreover, as Lawrence D. Longley and Neal R. Peirce explain in The Electoral College Primer 2000, Ronald Reagan was sufficiently worried about faithlessness in 1980 that he sent a letter to all his electors telling them not to try any funny business, even if Jimmy Carter won the popular vote. In 1992, Dr. F. was personally informed by several Perot-pledged electors that they would not support their candidate in the Electoral College. In the end, it didn’t matter because Perot didn’t win any states. And in 1996, a Dole-pledged elector named Dan Richardson came close to throwing his vote to Pat Robertson. He was persuaded not to only when informed that it would violate South Carolina law. (He should have consulted Dr. Faithless! See above.)

Do you think James A. Michener, the phenomenally popular American novelist, was a freak? As a Democratic elector in 1968, he gave serious thought to bolting. (Click here to learn why.)

It’s true that there has never been more than one faithless elector in any given election. The total number of faithless presidential electors is nine, starting with Pennsylvania’s Samuel Miles in 1796. (Miles, a Federalist, declined to vote for Federalist candidate John Adams and went with Thomas Jefferson instead.) But considering the relative high incidence of electoral faithlessness starting in the mid-20th century, in contests that were far less close than the current one, it seems reasonable to surmise that the temptation to go faithless will be at least as great this year, and probably greater. The motives for doing so are as unpredictable as human nature itself.

In the past, most electors have been right-wing extremists, but that description certainly doesn’t apply to Margaret Leach, a Democratic elector from West Virginia who in 1988 reversed the positions of Mike Dukakis and Lloyd Bentsen on her ballot. She did so to protest the (undeniable) absurdity of the Electoral College itself. Nor does it apply to Barbara Lett Simmons, a Democratic elector from D.C., who’s considering a similar gesture this year.

Incidentally, some people calculate the total number of faithless electors in U.S. history not at nine but at 17. The latter figure includes eight electors from New York and North Carolina who may have violated their pledges in the 1824 presidential contest. The circumstances, however, were murky (and too complicated to go into here), so historians tend not to count them.

Dear Dr. F.,

I’m a Republican elector, but I’m also a small-d democrat, and on those grounds I’m tempted to hold my nose and bolt for Gore. But I really do hate to do anything to help the liberals. Please advise.

Jangled in Jefferson City

P.S. The Electoral College is way stupid.

Dear Jangled,

You’re right, the Electoral College is way stupid! It’s anti-democratic, it’s pointlessly complicated, and almost no one has had a good word for it since it got written into the Constitution. Dr. F.’s favorite denunciation comes from Sen. Henry Cabot Lodge Jr., the patrician Massachusetts Republican who was Richard Nixon’s 1960 running mate. Lodge said that electors

are mere rubber stamps–and inaccurate rubber stamps at that. The people know the candidates for president and vice president; rarely do they know the identity of the electors for whom they actually vote. Such ‘go-betweens’ are like the appendix in the human body. While it does no good and ordinarily causes no trouble, it continually exposes the body to the danger of political peritonitis.

Well said, Hank!

How do we get rid of the Electoral College? It takes a constitutional amendment, and that’s really hard! But Dr. F. thinks that by demonstrating on Dec. 18 what a ruckus the Electoral College can make, you would definitely help jump-start a movement to replace the Electoral College with a straight-up popular vote.

Which brings me to your dislike of liberals. Dr. F. isn’t going to pretend that this year you’d be doing them anything other than a favor by helping to put Gore in the White House. Over the long run, though, you’d actually be sticking it to the liberals! That’s because liberals, it turns out, have a dirty little secret: They love the Electoral College! As Michael Nelson, a political scientist at Rhodes College, points out in the Dec. 4 issue of the American Prospect, since 1972 the Democratic playbook has dictated that presidential candidates concede the popular vote in “dozens of states” and focus on “winning enough big states to carry the Electoral College.” (It worked for Jimmy Carter in 1976 and Bill Clinton in 1992 and 1996, but not for George McGovern in 1972, Carter in 1980, or Gore this year.) Indeed, both in 1969 and in 1979, congressional Democrats killed bipartisan pushes to get rid of the Electoral College. In both years, much of the opposition, of course, came from small-state legislators, who like the exaggerated clout their states get from the Electoral College. But according to Nelson, the margin of defeat

was provided by big-state Democratic liberals. They argued (although seldom in public) that they liked the Electoral College not only because their states’ large blocs of votes attract to them almost all of the presidential candidates’ time and attention, but also because liberal constituencies tend to be concentrated in the major cities: African Americans, Latinos, Jews, and unionized workers.

To be sure, the concentration of liberal constituencies in big cities give Democrats some advantages in the national popular vote, too. But the Electoral College tends to exaggerate the effect of a lib-saturated-big-state win because in most states, electors are awarded on a winner-take-all basis. Indeed, according to Longley and Peirce’s Electoral College Primer 2000, the advantage that the Electoral College gives big states is even greater than the advantage it gives small states. It’s medium-sized states that really get screwed by the Electoral College. States like … well, Jangled, like your home state of Missouri!

Dear Dr. F.,

I just don’t trust that Tom DeLay. If I go faithless and cast my electoral vote for Al Gore, won’t DeLay get Congress to decertify me?

Intimidated in Indianapolis

Dear Intimidated,

He’ll certainly try, but Dr. F. doesn’t think he has the votes. Chapter 1 of Title 3 of the U.S. Code spells out that Congress shall tally the Electoral College votes on Jan. 6. On that day, the Senate will be under Democratic control. (The Republicans don’t take over until Inauguration Day.) This is important because it takes a majority vote in both houses of Congress to toss out the vote of an elector.

Awkwardly, Gore has vowed not to accept the votes of any faithless Bush electors. He will have to break that vow if called upon to cast the tie-breaking vote on whether to decertify a faithless Bush elector.

Dear Dr. F.,

How can you condone efforts to persuade electors to violate their pledges? OK, so maybe it isn’t illegal. But it sure as hell is immoral! You want presidents elected by popular vote? That’s fine. But under the rules we’ve got now, presidents are chosen by the states via honor-bound electors. Go soak your head. And tell your pal Bob Beckel to do the same.

Appalled in Austin

Dear Appalled,

Dr. F. neither advocates nor opposes Electoral-College faithlessness. He pleads guilty to being intrigued by the idea (and also slightly worried that a faithless-based victory for Al Gore would create such irrational anger against Gore that his administration would never recover). What Dr. F. seeks isn’t faithless electors, but rather tolerance for those electors who choose to be faithless and also for political activists who seek to persuade electors to bolt. Think of Dr. F. as the Electoral College’s Dr. Ruth: Anything’s OK as long as no one gets hurt!

Dr. F. thinks it’s tiresome for Republicans to carp about the will of the people getting short-circuited by faithless electors. First of all, judging by the popular vote, the will of the people is to make Al Gore president. Second, it’s Republicans who’ve made the first move this time out to short-circuit democracy. Yes, Republicans! They’re the ones who control the Florida Legislature, which is a hair’s breadth away from certifying its state electors for Bush–and to hell with what the voters say, or what the courts say the voters say.

As for Beckel–Dr. F. met the guy once, 16 years ago, so he’s hardly my pal. Beckel, a Democrat, is trying to get electors to go faithless. In 1976, Bob Dole, a Republican, may have tried to do the same thing. Testifying before the Senate Judiciary Committee in January 1977, Gerald Ford’s running mate explained that after Election Day

we were looking around on the theory that maybe Ohio might turn around because they had an automatic recount. We were shopping–not shopping, excuse me. Looking around for electors. Some took a look at Missouri, some were looking at Louisiana, some in Mississippi, because their laws are a little bit different. And we might have picked up one or two in Louisiana. There were allegations of fraud maybe in Mississippi, and something else in Missouri. We need to pick up three or four after Ohio. So that may happen in any event. But it just seems to me that the temptation is there for that elector in a very tight race to really negotiate quite a bunch.

It isn’t entirely clear, from Dole’s words, whether the Ford campaign was merely seeking to challenge the results in individual states or whether it was actively “shopping” for faithless electors. But given the context–Dole’s main point was that the Electoral College created opportunities for electors to “negotiate” and therefore ought to be abolished–it’s hard to escape the interpretation that the Ford campaign was tempted to do a little bargaining itself. If Dr. F. is right, then Republicans who scorn Beckel are utter hypocrites.

Got more questions about Electoral College faithlessness? Check out the Electoral College’s official Web site, the Federal Election Commission’s Electoral College Web page, and EC, “the U.S. Electoral College Web ‘Zine.” And don’t forget Longley and Peirce’s Electoral College Primer 2000. Separately and together, the two authors have been writing various versions of this book since the 1960s, and if the current crisis fails to make them rich, they’ll have good reason to feel very sorry for themselves.