Against Secret Ballots

Who was Minnesota’s faithless elector?

Minnesota has a long, squeaky-clean tradition of good government. In the December issue of the Rake, a magazine serving the Twin Cities, the journalist Albert Eisele observes,

The hallmark of the Minnesota Model is an essential decency and pragmatic common sense, coupled with a rejection of corruption and bossism, a distaste for extremist factions, a belief in education as the key to economic opportunity and social stability, a willingness to engage with the rest of the world, and a deep-seated conviction that government exists to improve the lives of all Americans.

But you can get too much of a good thing. The case of Minnesota’s mystery faithless elector is a timely example.

On Dec. 13, the nation’s 538 presidential electors gathered in state capitals around the country to perform their largely ceremonial duties. I say “largely ceremonial” because it’s always possible that an elector will cast his vote for someone other than the candidate he is pledged to. There has, in fact, been electoral faithlessness in most recent presidential elections, though it’s never affected the outcome. Of the many idiocies of the Electoral College, its vulnerability to faithless electors is probably the greatest; and though 26 states have laws on the books requiring in one way or another that electors vote in accordance with their pledge, these laws have never really been tested, and are probably unconstitutional. (Minnesota, in any event, is not one of the 26.)

Article II of the Constitution says that electors must “vote by Ballot,” but it does not stipulate that the ballot be secret; secret ballots didn’t become the norm until the late 19th century. In practice, electors in most states do not cast their votes in secret; typically, they either submit signed ballots or they cast their votes orally. (The latter is a technical violation of Article II, but nobody seems to care.)

In Minnesota, however, electors cast their vote by secret ballot, or at least they did so yesterday. (There’s no explicit secret-ballot requirement for electors under Minnesota state law.) According to an Associated Press report, each of the state’s ten electors wrote the name of his candidate on a sheet of paper measuring eight by eleven inches and then put the piece of paper in a pine box. The electors did not sign their ballots. All ten of the ballots ought to have had John Kerry’s name written on them, since all ten electors were pledged to Kerry, who took Minnesota, 51-48 percent,  on Nov. 2. But one elector wrote John Edwards’ name instead. None of the electors would admit to having done it, and it’s possible none of them actually remembers having done it. (That even a highly active Kerry supporter would have trouble remembering his candidate’s name a little more than one month after the election is, sadly, plausible.) So Minnesota’s errant elector is not only faithless, but faceless.

In having its electors cast secret ballots, Minnesota was arguably honoring the spirit of Article II. Nowadays, it doesn’t make much sense to require that electors “vote by Ballot” unless that ballot is secret. And ballot secrecy has become a keystone to democracy. It’s the sort of thing good-government types always approve of. But in this instance, Minnesota’s scruples were misplaced.

When a ballot is cast in secret in an ordinary election, the result is good for democracy because no voter need worry about being criticized or penalized over his choice. But when a ballot is cast in secret in the Electoral College, the result is bad for democracy, for precisely the same reason. We want electors to worry about being criticized or penalized over their choice, because electors aren’t supposed to exercise choice in the first place. Secrecy makes it impossible to know whether the elector did what the voters sent him to do; it renders the Electoral College unaccountable to the people.

In most instances, a secret betrayal won’t affect the outcome. Knowing the identity of Minnesota’s faithless and faceless elector would merely satisfy the public’s curiosity (and perhaps alert party officials that this person ought not be chosen for elector duty again).  In some instances, though, secret balloting by electors can affect the outcome. In the election of 1800, George C. Edwards relates in his book, Why the Electoral College Is Bad For America, one elector contemplated a faithless vote that–as with the phantom Minnesota elector–would have replaced a presidential candidate with his running mate. In this instance, though, the potential for mischief was serious. An elector for New York named Anthony Lispenard insisted he be permitted to cast his ballot in secret, apparently so he could switch his vote from Thomas Jefferson to Jefferson’s running mate, Aaron Burr, without anyone finding out he had done so. In those days, votes were cast separately for presidential and vice-presidential candidates, and whoever received the second-greatest number of electoral votes took the number-two spot. Burr was close enough to Jefferson’s electoral count that, had Lispenard followed through on this plan, Burr would have been elected president. As it happened, Lispenard in the end was pressured to vote, publicly, for Jefferson. The result was a tie that tossed the election into the House of Representatives, which eventually selected Jefferson.

There are good reasons to doubt the democratic legitimacy of Jefferson’s election, but they have nothing to do with faithless electors. And anyway, that’s another story.