Lessig: Up to 20 Electors Might Flip and Vote Against Trump — But Can They?
POLITICO (cached link; no links for bullies):
Larry Lessig, a Harvard University constitutional law professor who made a brief run for the 2016 Democratic presidential nomination, claimed Tuesday that 20 Republican members of the Electoral College are considering voting against Donald Trump, a figure that would put anti-Trump activists more than halfway toward stalling Trump’s election.
Lessig’s anti-Trump group, “Electors Trust,” has been offering pro bono legal counsel to Republican presidential electors considering ditching Trump and has been acting as a clearinghouse for electors to privately communicate their intentions.
I tend to think this is ridiculous — but then, I thought the prospect of electing Donald Trump was ridiculous too. It seems supremely unlikely that this is going to change anything. The GOP whip count says it’s not happening and Lessig is wrong.
Possibly a more interesting question is whether electors can vote for someone other than the person a majority of state voters chose.
I think they can.
Politically, it would be a disaster, and people would reach for their pitchforks and torches. But constitutionally, I think they could do it.
I have not researched the law in this area. But based solely on a reading of the Constitution and on our nation’s history, my tentative view is that electors can vote for whom they want. Article II and the 12th Amendment give the authority to vote for the President to “The Electors.” Any state law that requires them to vote for the person chosen by the majority of the state voters would be an amendment to the Constitution that has not gone through the amendment process, and accordingly would be unconstitutional.
That’s the text. As for the history, keep in mind that there were faithless electors as early as the second election of James Madison.
I’m aware that two Hillary Clinton electors filed a suit in Colorado to invalidate a state law requiring them to vote for the winner of the state’s popular vote.
Colorado law prohibits them from shifting their allegiances, and Republican Secretary of State Wayne Williams has pledged to replace them if they do so — two moves the electors argue violate the U.S. Constitution.
On Monday, a judge denied preliminary relief to these electors, and delivered a lot of huffing and puffing about the sanctity of the vote and the outrage this would cause, yada yada yada. All of this is irrelevant to the constitutional question, but judges gonna monologue.
I don’t know whether the judge has issued a written ruling, but the issue in that case comes down to whether we are talking about requiring the legislators to vote a certain way, which seems impermissible, or replacing them when they indicate they are planning to be faithless, which may be constitutional.
In Article II, the Constitution gives the states authority to appoint electors “in such manner as the Legislature thereof may direct.” So if state law allows the electors to be replaced before the vote for any reason — including their declaration that they are going to be faithless to the vote of the people of the state — then replacing them before the vote could well be constitutional.
Replacing them after they have voted the “wrong” way would presumably not be.
Again, Lessig’s faithless elector scenario seems politically fruitless — and if it worked, it would make a lot of people angry — but we must adhere to the Constitution at all times, regardless of how it makes people feel. That’s an unpopular position these days, but it’s mine.
[Cross-posted at RedState.]
If more than three GOP electors prove unfaithful then I’ll be amazed. I would almost be willing to bet there will be more unfaithful Democrats than there will be unfaithful Republicans.
JVW (6e49ce) — 12/14/2016 @ 9:59 amSeems to me the leftist democrats will do anything to overturn the election. This is looking like a coup. At least a “soft” coup. If they succeed the Republic is over. Is it still too soon to talk civil war?
Rev. Hoagie® (785e38) — 12/14/2016 @ 10:05 amThey need to make their way thru ALL stages of grief until they can hit the “Acceptance” stage.
They will probably never be described as the “loyal opposition”. That’s a bridge too far.
Colonel Haiku (ec6668) — 12/14/2016 @ 10:09 amWe shall see.
I’m all for tar and feathers with some assembly required.
NJRob (43d957) — 12/14/2016 @ 10:15 amLessig is also one of the loudest voices with the sparsest accomplishments. He made a big stink about running for President on a pure campaign-finance reform platform, but after getting all sorts of free publicity from the usual fawning media outlets I don’t think he followed through on the promise. I think with Alan Dershowitz easing into retirement and Henry Louis Gates losing his direct connection to the White House, Lessig is now assuming the role as the insufferable Harvard professor who commands undue media attention.
JVW (6e49ce) — 12/14/2016 @ 10:24 amAs I understand it, each state determines how its electors are required to vote.
Cruz Supporter (102c9a) — 12/14/2016 @ 10:34 am“(W)e must adhere to the Constitution at all times, regardless of how it makes people feel. That’s an unpopular position these days, but it’s mine.”
LOL, in a sardonic sort of way.
ThOR (c9324e) — 12/14/2016 @ 10:35 amSome states have a law saying that if any Elector votes for someone other than the person he or she taht constitutes an automatic resignation, but that has not been tested. I suspect that law wouldn’t actually hold up, if the constitution was interpreted correctly.
The question I have is: Who is lying to Lawrence Lessig, and why??
Okay maybe he’s a fool in some wsays, but why are they doing this?
I’m afraid it’s preparation for afuture election, This one’s lost.
Sammy Finkelman (643dcd) — 12/14/2016 @ 10:39 amThe law PROHIBITS them from voting from someone other than the winner of the popular vote, you meant.
ProLifer (2beea9) — 12/14/2016 @ 10:39 amThere’s also an Op-ed piece in the New York Times today by an editor at Slate and a law professor at Drexel University’s Thomas R. Kline School of Law – Dahlia Lithwick (@Dahlialithwick) and David S. Cohen (@dsc250) – giving a couple of reasons not to elect Trump.
http://www.nytimes.com/2016/12/14/opinion/buck-up-democrats-and-fight-like-republicans.html
They complain that top Democrats have been almost absent here. The Hillary Clinton campaign has gone almost completely dark, they say. You only see Hillary Clinton in selfies with strangers.
They claim the Republicans would have done everything they could and that they tried all sorts of legal theories in 2000
You mesan (re)counting all votes equally was a novel legal theory?
So they say – why shouldn’t the Democrats fight tooth and nail?
As for why Republican electors should not vote for Trump: It seems like they recently learned about his conflicts of interest, and he’s skipping national security briefings and “dangerously departing from longstanding bipartisan foreign policy” (Taiwan they mean?) and is criticizing “union workers” (the union leader at Carrier?) and protesters on Twitter and he’s staffing much of his Cabinet with billionaires who want to eradicate the programs they are overseeing (two different things actually – the person who’s name is being sent to the Senate to head the EPA is not a billionaire – and that’s not illegal)
And for good meassure:
“most recent reports from the C.I.A. are that Russia interfered with the election.”
The CIA was saying that before the election actually.
Sammy Finkelman (643dcd) — 12/14/2016 @ 10:47 amDahlia lithwhick ah snorfle.
narciso (d1f714) — 12/14/2016 @ 10:50 amMeanwhile, while these people are complaining that top Democrats are nowhere to be seen, Rush Limbaugh tries to tie this whole thing to Obama.
Apparently Van Johnson, someone Obama fired years ago from his Green Czar position after it came out that he’d signed on to some 9/11 truther theory that claimed Bush was involved in some way is maybe part of this, but I can’t find anything else about this.
There may be a link when Rush produces a transcript later today.
Sammy Finkelman (643dcd) — 12/14/2016 @ 10:51 am5. JVW (6e49ce) — 12/14/2016 @ 10:24 am
He wa sbasing his campaign on getting into the debates, and Debbie Wasserman Schultz and the DNC pulled the rug out from under him by changing the rules as to who qualified to be a primary debate.
And we didn’t learn that from the Russians.
http://www.huffingtonpost.com/steve-jarding/the-democrats-have-now-ch_b_8445202.html
http://motherboard.vice.com/read/why-is-lawrence-lessig-missing-from-tonights-cnn-debate
Sammy Finkelman (643dcd) — 12/14/2016 @ 10:58 amI could have sworn there was case law from the late nineteenth century which says that a state legislature may not bind a *Senator* to vote a particular way, because Senators are federal officeholders and states may not compel federal officeholders to perform their federal duties a particular way.
Seems like the same argument applies to electors.
aphrael (a1ad60) — 12/14/2016 @ 10:58 amVan Johnson teh actor, Sammeh?
Colonel Haiku (ec6668) — 12/14/2016 @ 11:05 amI applaud the lack of introspection and self-examination manifested by Lessig in his contribution to the WE WUZ ROBBED cowbell symphony. A tight focus on the idiotic is very helpful and time spent scribbling inanity is time unavailable to examine the process by which the Democrat Blue Maginot Line disappeared. It is my hope Lessig possesses the gift to bring left wing rabble to the streets in order to continue the magnificent job Occupy Wall Street and Black Lives Matter have done in restricting the Democrat Party to coastal and lakeside environs.
You’re a true genius, Professor. Keep up the great work.
Rick Ballard (764455) — 12/14/2016 @ 11:08 amHillary could put an end to this nonsense with a presser. Instead, she lets her minions continue to chase a train that’s left the station. She’s probably out hiking the Appalachian Trail looking for driveways to clear, ready to pose for selfies with snow shovel in hand. Truly a batch of bad losers.
Think about it… $1.2 billion was spent on her losing campaign. What a wa$te, on $o many level$.
DCSCA (797bc0) — 12/14/2016 @ 11:17 amhow much credibility can we honestly assign to harvardtrash law professors really
very poor track record, these ones
happyfeet (28a91b) — 12/14/2016 @ 11:20 amThe names of my states’ electors were not on my ballot, the names of the presidential candidates were. Consequently, whatever the legalities are, the electors have absolutely no moral authority to vote for anything other than presidential candidate who won in their state. This holds true anywhere that people voted for the presidential candidate rather than the electors, which as far as I know is everywhere.
Article I Section 1 Paragraph 2
2: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Nowhere in the constitution does it override the legislature’s authority to choose the electors however they please. If they choose to select the electors by popular vote, they may not forbid people from voting because of sex or race or age-under-eighteen, but they don’t have to choose the electors by popular vote. I think this implies the ability to bind the electors to the popular vote.
Elizabeth Creegan (bce7aa) — 12/14/2016 @ 11:33 ambingo Lizpickles
this idea it’s okey dokey to let a bunch of snotty nevertrump trash whimsically thwart the votings of the people of their state is as anti-constitutional an idea as they come
i can see harvardtrash Ted being on board with this
but people of character and principle?
not so much
happyfeet (28a91b) — 12/14/2016 @ 11:38 amIn what world are electors federal office holders?
Locke (e354af) — 12/14/2016 @ 11:42 amThey keep knocking down the pillars, thinking that the roof will stay up no matter how many pillars are gone.
As I read somewhere yesterday … Maybe Pol Pot was on to something, with his ideas on how to deal with the intelligentsia.
fred-2 (ce04f3) — 12/14/2016 @ 11:48 amits more like the sinise film, where he didn’t realize he had been replaced by a nuke carrying android
narciso (d1f714) — 12/14/2016 @ 11:49 am#14 aphrael, until 1913, state legislatures appointed US Senators.
Electors must follow the laws of their state. The electors represent their state. This is what federalism is all about.
One of my all-time favorite quotes by Reagan is when he said we’re a nation with a federal government — not the other way around. (LOL)
Cruz Supporter (102c9a) — 12/14/2016 @ 11:50 amI think the faithless elector business was much more interesting to contemplate a month ago than now. Most people outside of some professional Dem pols and the east coast media by now have come to the conclusion –and accepted –that Trump won fair and square and that he is proving not to be as scary as once feared.
Here are the rules in my state.
elissa (c709c7) — 12/14/2016 @ 11:53 amyes yes the roof
the roof
the roof is on fire!
harvardtrash Lessig and his juvenile vote-your-conscience posse are perverting the constitution not upholding it
they’re viciously raping and degrading it like how John Roberts likes to do now and again 🙁
this is no good
you wanna utterly demolish popular respect for constitutional law?
keep it up with these tricksy harvardtrash constitution games
happyfeet (28a91b) — 12/14/2016 @ 11:59 amAny elector that votes contrary to the will of the people who elected him/her (or her/him, if you prefer), is disenfranchising those voters. Chris Suprun, Texas, will steal the votes of about 125,000 Trump voters.
Scott (335a4a) — 12/14/2016 @ 12:02 pmI think the selfie, or maybe there are selfies now, was in Chappaqua. DCSCA (797bc0) — 12/14/2016 @ 11:17 am
But she doesn’t want to, obviously.
On the other hand, she doesn’t want to be linked to this, either.
There must be an explanation for this. Not willing to gove up on a longshot? Keeping people together, and their spirits up, so they’ll do something in another campaign?
Sammy Finkelman (643dcd) — 12/14/2016 @ 12:10 pmRight, or requires them to vote for the winner. Thanks for the catch. I fixed it by removing the words “someone other than” from the offending sentence.
Patterico (d64fac) — 12/14/2016 @ 12:10 pmElectors are state office-holders. They are not legislators, so any legal precedent regarding what a state may require of a senator or congressman doesn’t apply. They are electors, charged with voting for the office of President of the United States, among the top three or four candidates presented in the popular vote portion of the process. The only office they hold is that of elector, they are selected according to the law of the states – not so many years ago, they were appointed either by the governor or the legislature – and thereafter meet to vote for the candidate whose elector they declared themselves to be prior to their names appearing on the ballot as electors. They don’t legislate. Their only power is to agree to be one of their state’s electors for a particular political party. Period. They have no power to demand briefings from the CIA, access to classified materials, or a Happy Meal. Period. This movement is entirely organized and being conducted in an attempt to destabilize Mr. Trump’s presidency, to make it more difficult for him to be President than it would otherwise be. If some person, crazier or more violent than this collection of poltroons, starts a civil war over this, we will all suffer, including these fools. The legitimacy of government at all levels has been steadily eroded over the last 50 years – maybe before, but I wasn’t alive and aware before then – and we may be at the point where this foolishness will be the straw that breaks the camel’s back.
Ike (216bbe) — 12/14/2016 @ 12:10 pmDCSCA:
And they actually stopped the SEIU from doing anything in Michigan (it occurs to me that might be illegal co-ordination, but anyway…
http://www.nationalreview.com/morning-jolt/443028/russia-hacking-obama-failure-aleppo-disaster-clinton-loss
Sammy Finkelman (643dcd) — 12/14/2016 @ 12:10 pmDemo gone wrong
papertiger (c8116c) — 12/14/2016 @ 12:11 pm15. Colonel Haiku (ec6668) — 12/14/2016 @ 11:05 am Van Johnson teh actor, Sammeh? The name is Van Jones, I’ms sorry.
Sammy Finkelman (643dcd) — 12/14/2016 @ 12:52 pmMy interpretation would be that they could probably replace the electors before the fact, or punish them in any way laid out by state law that would pass constitutional muster (i.e., anything short of execution) for violating their oath, but once the vote is cast it is a done deal.
M Scott Eiland (1edade) — 12/14/2016 @ 1:13 pmSure, the legislators appointed Senators. But that doesn’t mean that the legislature had the constitutional right to *instruct* Senators. Which is to say, they could elect a Senator, but they couldn’t, as a matter of state law, require that a Senator vote a particular way on a particular bill.
That said, I am wrong.
The history section of http://digitalcommons.liberty.edu/cgi/viewcontent.cgi?article=1028&context=lu_law_review indicates that it was generally accepted that states *could* instruct their Senators and that Senators were required to follow the instructions.
On the other hand, the electors have the *power* to vote for whomever they want, they’ll just face state law consequences.
aphrael (a1ad60) — 12/14/2016 @ 1:14 pmaphrael, no, electors have to vote in accordance with state law.
Cruz Supporter (102c9a) — 12/14/2016 @ 1:20 pmpoopy electors should be shunned and banished to canada
for true Americans, they are not
happyfeet (28a91b) — 12/14/2016 @ 1:42 pmRather than wholeheartedly agreeing with the contention that HRC ran a purelypopular vote campaign, I would note that she was running a electoral college campaign…for 2024. In any case, even good ol Texas playing rebel would only be a 4 vote margin of victory easily reversed by 3 conscience objectors from the NE states.
urbanleftbehind (821779) — 12/14/2016 @ 1:46 pmNeo-neocon calls bullsh*t on this whole enterprise…
“It was inevitable, of course, that the MSM would mount this attack on Trump’s legitimacy, particularly their leader and still champ (despite its financial woes) the NY Times.
They didn’t acknowledge the possibility of a Trump win. Now they are refusing to acknowledge the reality of the Trump win. And if it’s not Comey or fake news that’s responsible, it’s the Russians hacking and the republican (small “r”) Electoral College system.”
http://neoneocon.com/2016/12/14/the-swelling-trump-is-illegitimate-meme/
Colonel Haiku (ec6668) — 12/14/2016 @ 1:52 pmI suspect this is a question that would never get decided by a court, but would be deemed a “political question” for the political branches to resolve.
The text of the 12th Amendment doesn’t speak to the question of whether the States can impose a condition on who the electors can vote for, i.e., they must vote for the person who received the most votes in the state’s presidential election.
This might actually be a circumstance where the Tenth Amendment would come into play, and without deciding the the question with respect to any specific state’s statute, simply declare that the Tenth Amendment reserves authority to the States on matters not specified in the Constitution, and leave it at that.
shipwreckedcrew (56b591) — 12/14/2016 @ 1:59 pm#40 shipwreckedcrew, if it’s an ambiguous question that hasn’t been settled, then why do all states have their own laws regarding electors? And why does Maine have a district #2 that’s up for grabs, and same with a district in the Omaha/Lincoln area of Nebraska? I think it’s because each state is enabled to determine how their electoral votes are delegated. And by the same token, state get to determine how electors must behave.
Cruz Supporter (102c9a) — 12/14/2016 @ 2:52 pmStates get to determine how the Electors are selected, but not the time of choosing them, or the date on which they cast their votes (which must be the same throughout the United States) or how they will vote, although many pretend to prescribe how they will vote.
Sammy Finkelman (dfe091) — 12/14/2016 @ 3:27 pm35. The legislarure of the state of Massachusetts (which included what is now Maine, too) didn’t like the way John Quincy Adams voted, and selected a successor one and half years before his term was up in 1809, and he resigned in 1808 before his term was up and left the Federalist Party.
Sammy Finkelman (dfe091) — 12/14/2016 @ 3:32 pmHillary Clinton did step out in public one time in the last week or two, when she delivereed a speech at the dedication of Harry reid’s portrait (which Harry Reid decided to commission while he was still in the Senate)
https://www.youtube.com/watch?v=pZDugCvmhQM
Sammy Finkelman (dfe091) — 12/14/2016 @ 4:17 pmThe federal judge seemed to take Colorado’s argument to heart that voters voted for candidates, not electors, and the electors are just agents of the state. As such, they are NOT individuals but serve the state as the state sees fit. And state law says they vote for the winning candidate.
Failing that, the state could demand that each elector swear, under penalty of perjury, that they intend to vote as directed, and replace any who refused to so swear.
Kevin M (b8a03f) — 12/14/2016 @ 5:53 pmLessig is also one of the loudest voices with the sparsest accomplishments.
His argument in the Sonny Bono Copyright Act case was foolish, if not incompetent. His idea was to win over the liberal judges (against Hollywood) with a whiny argument about penumbrae of the first Amendment. He would have had much better luck casting it as a Taking of the public domain without compensation, but that would have required him to appeal to Scalia and Thomas and he’d rather have died than do that.
Kevin M (b8a03f) — 12/14/2016 @ 5:57 pmYet another reason to ignite polit*co.
narciso (d1f714) — 12/14/2016 @ 6:00 pmI could have sworn there was case law from the late nineteenth century which says that a state legislature may not bind a *Senator* to vote a particular way, because Senators are federal officeholders and states may not compel federal officeholders to perform their federal duties a particular way.
Senators are elected as individuals. In states where electors are not named on the ballot, they have no independent authority. They are simply agents of the voters.
Kevin M (b8a03f) — 12/14/2016 @ 6:06 pmBtw about wrongway suprun…
narciso (d1f714) — 12/14/2016 @ 6:07 pmI think this implies the ability to bind the electors to the popular vote.
So did Judge Daniel.
Kevin M (b8a03f) — 12/14/2016 @ 6:09 pmThat is the question we are discussing. Your declaration does not make it so.
Up until the last sentence, the answer is given in the Constitution, in language quoted in the post above:
Appoint. Then you declare that the state can determine how they “behave” (apparently meaning “vote”) but the Constitution does not say that.
SWC’s supposition that the 10th amendment could apply is not wholly implausible, but strikes me as unlikely.
Patterico (115b1f) — 12/14/2016 @ 6:11 pmSo that information about Russia, is not important enough to brief house intelligence.
narciso (d1f714) — 12/14/2016 @ 6:12 pmIt’s a republic. We vote for a slate of Electors, not candidates. If it were otherwise, there would be zero reason for the College. Americans, for a very long time, did not vote directly for Senators either. That required an amendment.
Then again, since most everything is about the outcome, and not the rule of law in the judiciary, that ridiculous pre-emptive opinion would no doubt be the prevailing ruling should one be required (DJT not getting at least 270).
Ed from SFV (3400a5) — 12/14/2016 @ 6:14 pmFederal judges say wrong things all the time.
Patterico (115b1f) — 12/14/2016 @ 6:15 pmCongress has to certify the votes anyway, and can reject them if it likes.
Since 1887, 3 U.S.C. 15 sets the method for objections to electoral votes. During the Joint Session, Members of Congress may object to individual electoral votes or to state returns as a whole. An objection must be declared in writing and signed by at least one Representative and one Senator. In the case of an objection, the Joint Session recesses and each chamber considers the objection separately in a session which cannot last more than two hours with each Member speaking for no more than five minutes. After each house votes on whether or not to accept the objection, the Joint Session reconvenes and both chambers disclose their decisions. If they agree to the objection, the votes in question are not counted. If either chamber does not agree with the objection, the votes are counted.
Objections to the Electoral College votes were recorded in 1969 and 2005. In both cases, the House and Senate rejected the objections and the votes in question were counted.
Gabriel Hanna (14083c) — 12/14/2016 @ 6:15 pmThis clearly against the spirit if not the letter of the article, if they want to change the process, pass an amendment.
narciso (d1f714) — 12/14/2016 @ 6:19 pmAgain, declaring it to be so does not make it so.
Patterico (115b1f) — 12/14/2016 @ 6:19 pm52… can you believe that %#%€£#! I await a movie about the attempt by so-called progressives at subverting the Constitution and overturning an election. A bunch of goddam corksoakers anyway.
Colonel Haiku (2601c0) — 12/14/2016 @ 6:25 pmSwell what precedent is operating against this, this seems more like the maneuvers against Abbott, that seated gilliard. That is a parliamentary system though.
narciso (d1f714) — 12/14/2016 @ 6:26 pmBecause ‘it sound and fury signifying nothing’ coronello.
narciso (d1f714) — 12/14/2016 @ 6:31 pmWho are these purported gru and kgb operatives, even the mandiant report doesn’t point them out.
narciso (d1f714) — 12/14/2016 @ 6:35 pmNone of this is real, just like ttayvon wasnt shot in the back, mateen wasnt , and w didn’t eat a plastic turkey.
narciso (d1f714) — 12/14/2016 @ 6:43 pmNarciso,
Why should the ‘lamentations of their women’ phase be rushed? I’m looking forward to the ‘as if millions of voices suddenly cried out in terror’ moment at the EPA myself.
None of the lamentations are real but I have my fingers crossed regarding cries of terror at the EPA.
Rick Ballard (764455) — 12/14/2016 @ 6:57 pmAgain, declaring it to be so does not make it so.
Declaring is NOT so is no more convincing. Which is the more reasonable expectation?
Kevin M (b8a03f) — 12/14/2016 @ 7:25 pmI think folks are missing the long game here. It is in the Democrats’ interest to destabilize the Electoral College. It favors small/rural states over big/urban states and for the most part that’s red vs blue. The GOP routinely wins more states @ +2 votes apiece. It is also impossible to waste a lot of votes in a small state.
So, the sooner the Dems get rid of the EC the better they’ll like it. So they drag it through the mud every time they can.
Kevin M (b8a03f) — 12/14/2016 @ 7:30 pmYes that’s the longball, so this roman aclef has volodya now personally running grishenko and ivanova* re the fake NBC news
*Hackers in goldeneyr
narciso (d1f714) — 12/14/2016 @ 7:36 pmSo martin sheen has gotten into the act.
narciso (d1f714) — 12/14/2016 @ 7:48 pmColorado apparently requires electors to take an oath. To say that they can violate that oath with impunity would be like saying juror’s oaths to vote according to the evidence and rules presented are meaningless.
Kevin M (25bbee) — 12/14/2016 @ 8:01 pmAnd yet, if jurors disregard that oath, there’s pretty much no remedy.
Patterico (115b1f) — 12/14/2016 @ 8:14 pmThat is not the question. The question is: what does the Constitution require?
And I made an argument in the post concerning that question.
Patterico (115b1f) — 12/14/2016 @ 8:15 pmAnd yet, if jurors disregard that oath, there’s pretty much no remedy.
And if your diamond courier skips to Brazil and there’s no extradition treaty, there’s pretty much no remedy either. But it doesn’t mean that the courier wasn’t your agent, and it doesn’t mean that he didn’t commit a crime.
The argument here, then is “suppose my agent doesn’t do what I told him to?” And the answer is you can (maybe) punish him for it but you cannot prevent him from taking an irrevocable action. Unsaid is whether that action be taken as valid by another party, such as Congress?
Kevin M (25bbee) — 12/14/2016 @ 9:39 pmCould his state revoke his authority to vote, retroactively, to make him not one of “the electors present”? That would lessen the effect of his vote on the final count.
nk (dbc370) — 12/14/2016 @ 9:45 pmThe Constitution clearly allows states to appoint their electors in any way they see fit, but I believe the First Amendment protects each elector’s right as an individual to express their political opinions by voting as they wish.
The Supreme Court’s opinion in West Virginia State Board of Education v. Barnette (1943) settled the question of whether the government can compel someone to affirm a belief or political opinion against their will:
It seems indefensible to argue that the votes of the electors are merely pro forma consummations of some impersonal government function. It was clearly understood and intended by the framers that the electors were making a political decision and had the power of choice. As such, I don’t see how the First Amendment would permit a law dictating how they must vote, any more than it would permit a law dictating how you and I must vote.
Dave (711345) — 12/15/2016 @ 3:12 amDave,
The “electors” are not on the ballot. No one said “I think I’ll vote for Joe Blow as an elector.” They did not place their trust in Joe, they placed it in the STATE and the STATE’S duty to have those electoral votes cast according to law.
What you are suggesting is like saying that a state employee has a perfect right to spend state money on whatever he wants. It isn’t so.
Kevin M (25bbee) — 12/15/2016 @ 8:01 amDave (711345) — 12/15/2016 @ 3:12 am
Legally they are free to vote any way they want, but nobody has regarded them as free agents since 1796.
https://en.wikipedia.org/wiki/Samuel_Miles
Here’s a little bit more detail on that:
https://en.wikipedia.org/wiki/Faithless_elector
By the way, the use of the term Democratic-Republican is an anachronism, but is common because Congress categorixeed them that way in various historical statistics in the early 20th century I think Thomas Jefferson’s party was called the Republican party, and nothing else – later when it split into factions after 1820, maybe it’s possible that for a while Andrew Jackson’s people were called Democratic Republicans, and I’m not sure that’s correct at all. It is true that John Quincy Adams’ party at some point were called National Republicans.
When the Republican Party was founded in 1854 they deliberately adopted the old name of Thomas Jefferson’s party. There never was a Democratic-Republican but that’s a way to indicate that the current Democratic party is a continuation of the party of Thomas Jefferson and Aaron Burr.
Sammy Finkelman (dfe091) — 12/15/2016 @ 8:29 amElectoral College 101: (prepared after the 2012 election, but before this year)
http://slideplayer.com/slide/1699165/
Sammy Finkelman (dfe091) — 12/15/2016 @ 8:30 am1. The constitution gives electors the responsibility to vote for president and vice president. Inherent in such a responsibility must be the right to vote as the elector thinks fit. A compelled vote is not a vote at all. Imagine a state law requiring voters to cast their votes a certain way! That would not be an election! Or imagine anyone telling jurors how to vote!
The legislature gets to decide one thing and one thing only: not who the electors shall be, let alone how they shall vote, but only how they are to be appointed. (It can of course decide to appoint them itself, but currently no state’s legislature has made that decision.)
2. Electors are elected officials exactly like congressmen, and the voters they represent cannot instruct them how to vote. That’s what representative democracy, rather than direct democracy means. None of us get a say on legislation, we merely get to choose those who have the say. As far as I’m concerned the definitive statement on this is Edmund Burke’s address to his voters in Manchester.
Aphrael, I read the PDF you linked but I am convinced it can’t be correct. There may have been many people in the 19th century who believed they had the right to instruct their legislators, but they did not have that right. There were all sorts of strange theories current in the 19th century, as there are today, but they are not consistent with the constitution or the sources on which it was based.
3. Per Rehnquist in Bush v Gore, not only are electors federal officials exercising a federal function, but so are state legislators in directing how the electors are to be appointed. They are fulfilling a task delegated to them by the federal constitution, so in doing so they are not subject to their state constitutions, laws, or judiciary.
4. The fact that most (all?) state legislatures have chosen not to print the names of the candidates for elector on the ballot is irrelevant. Whether voter are aware of it or not, they are voting for these hidden candidates, not for the “front men” they think they’re voting for. If you’ve got a problem with that, take it up with your state legislature. But the legislature can’t change the constitutional reality.
5. I have seen various articles alleging that a supreme court decision in 1952 affirmed the states’ right to bind electors. These allegations are false and those making them are sloppy in not having looked it up themselves. The decision they refer to is Ray v Blair, and not only does it not authorise states to hold electors to their pledges, it doesn’t even authorise them to demand such pledges in the first place. Rather it affirms the right of a political party to require pledges from those seeking its nomination as a candidate for election to any position, including that of presidential elector, and to deny a spot on the primary ballot to anyone not willing to make such a pledge. It actually makes the point that anyone refusing to make such a pledge is free to run for elector as an independent.
Of course the same is true not only for presidential elector but for any position. A party can say that if you want to run in our primary for nomination to a seat in congress, you must pledge to vote with the party on all issues. But everyone understands that it can’t hold anyone to such a pledge. A pledge, even honestly made, reflects only the person’s current intention; if the person later changes his mind he can and must change his vote.
Thus it appears to me that both judges in the Colorado case are full of sh*t and their decisions, to which they probably gave all of five minutes’ consideration, are wrong.
Milhouse (40ca7b) — 12/15/2016 @ 2:52 pmMilhouse (40ca7b) — 12/15/2016 @ 2:52 pm
There was a time when people could vote separately for eacgh elector and in some election, either 1888 or 1892, I think the top Cleveland elector got more vootes than the bottom Harrison elector or vice versa.
I think California may also have split its electoral votes in 1912. Of course there’s Alabama in 1960, but there there was a primary for Electors.
That’s why I said or thought you can’t really write-in a name for a candidate for president in the general election. I think usually it says in smaller print “Electors for”
Every state by 1832 had the general ticket system and popular vote for Electors except South Carolina where the legislature continued to select Electors until the Civil War – the last time in 1860.
In 1892 Michigan created a special kind of district system to split its electoral votes.I don’t know when was the last time the names of the electors were printed. Probably not so long ago in some southern states. It may be theer’s no stagte left.
Sammy Finkelman (643dcd) — 12/16/2016 @ 11:11 amThe AP polled abouit 320 Electors. tghey found only one faithless one.
That faithless elector is a fraud.
http://www.wfaa.com/mb/news/local/texas-news/no-record-of-faithless-elector-chris-suprun-as-a-911-first-responder/371421191
Sammy Finkelman (643dcd) — 12/16/2016 @ 11:12 am@ Kevin M
No, its up to the STATE to decide HOW electors are appointed. Running a vote on which candidate gets the majority, and pulling from poll of people who say they will vote for that candidate is certainly an option. Its also an option to vote for specific electors. Or for the legislature to vote appoint them directly. NONE of that implies the state gets to force an elector to vote a specific way, because if that was the case, there would be no point of having electors.
No its more like saying a representative must vote how the voters that elected them say they should vote. It isn’t so.
The Constitution does not give the state’s any power to decide how elects will vote, only who they decide to select as electors.
Patrick Henry, the 2nd (e04f50) — 12/16/2016 @ 12:56 pmThis is a pretty nice quote:
“We’re certain about how our electors will vote,” Florida GOP chairman Blaise Ingoglia told The Hill. “There is a better chance of Hillary Clinton telling the truth about something than any of our 29 electoral votes going for anyone other than Donald Trump.”
elissa (da4c50) — 12/16/2016 @ 1:48 pmNo its more like saying a representative must vote how the voters that elected them say they should vote. It isn’t so.
And again, a representative is elected by those he represents. The folks in CO elected a President, not electors. The electors are just furniture.
Kevin M (25bbee) — 12/16/2016 @ 5:54 pmOf course, faithless electors ought not live in glass houses:
http://www.usatoday.com/story/news/politics/onpolitics/2016/12/16/questions-raised-rsum-anti-trump-faithless-elector/95521638/?utm_source=feedblitz&utm_medium=FeedBlitzRss&utm_campaign=usatoday-newstopstories
Kevin M (25bbee) — 12/16/2016 @ 5:55 pmSorry, Kevin, that just isn’t so, no matter how much those folks think it is. Their misconceptions don’t change the reality. We are a constitutional republic, and like it or not our constitution says the people do not get to elect the president. The people soon came up with a workaround, which is 99.5% effective, but it’s a kludge with no basis in law, and the state laws that purport to enforce it are invalid.
Milhouse (40ca7b) — 12/18/2016 @ 7:01 amNot just 1960, that was how they always did it. The supreme court case in 1952 was from Alabama, and as I noted above, it was specifically about a pledge demanded as a condition of being allowed to run in a party primary for nomination as a presidential elector.
Milhouse (40ca7b) — 12/18/2016 @ 7:04 amHEH!!!
https://static.pjmedia.com/instapundit/wp-content/uploads/2016/12/Screen-Shot-2016-12-18-at-8.53.35-AM-600×218.png
Colonel Haiku (2601c0) — 12/18/2016 @ 8:24 amAnd Hillary Clinton will never be president of the USA.
Colonel Haiku (2601c0) — 12/18/2016 @ 8:25 amAnd that never gets old.
papertiger (c8116c) — 12/18/2016 @ 8:47 amIt’s official…
“Democrats who are having trouble getting out of the first stage of grief — denial — aren’t being helped by the fact that, now that all the votes are counted, Hillary Clinton’s lead in the popular vote has topped 2.8 million, giving her a 48% share of the vote compared with Trumps 46%.
To those unschooled in how the United States selects presidents, this seems totally unfair. But look more closely at the numbers and you see that Clinton’s advantage all but disappears.
As we noted in this space earlier, while Clinton’s overall margin looks large and impressive, it is due to Clinton’s huge margin of victory in one state — California — where she got a whopping 4.3 million more votes than Trump.
California is the only state, in fact, where Clinton’s margin of victory was bigger than President Obama’s in 2012 — 61.5% vs. Obama’s 60%.
But California is the exception that proves the true genius of the Electoral College — which was designed to prevent regional candidates from dominating national elections.
In recent years, California has been turning into what amounts to a one-party state. Between 2008 and 2016, the number of Californian’s who registered as Democrats climbed by 1.1 million, while the number of registered Republicans dropped by almost 400,000.
What’s more, many Republicans in the state had nobody to vote for in November.
There were two Democrats — and zero Republicans — running to replace Sen. Barbara Boxer. There were no Republicans on the ballot for House seats in nine of California’s congressional districts.
At the state level, six districts had no Republicans running for the state senate, and 16 districts had no Republicans running for state assembly seats.
Plus, since Republicans knew Clinton was going to win the state — and its entire 55 electoral votes — casting a ballot for Trump was virtually meaningless, since no matter what her margin of victory, Clinton was getting all 55 votes.”
https://pjmedia.com/instapundit/252133/
Colonel Haiku (2601c0) — 12/18/2016 @ 9:23 amI think it was actually Thomas Jefferson and John Adams who came up with what you could call a workaround in 1796. It wasn’t so much a workaround as an attempt by Thomas Jefferson and John Adams to anticipate things.
It wasn’t perfect, and things went in a really unexpected way in the year 1800. They amwnded the constitution in time for the 1804 election, but in as minimal a possible way, so the office of Vice President and the electors were still retained. They needed electors anyway to properly weight the states.
The Electoral college system – what with voting for 2 candidates and all Electors voting on the same day when they obviously could not be in contact with each other – had actually been designed to avoid national campaigns It was also thought even maybe that, with the exception of he first election, when everyone knew it wold be George Washington, that the election would usually be decided in the House.
There was such a strong disapproval of campaigning that in fact until William Jennings Bryan for the Democrats in 1896 and later Theodore Roosevelt for the Republicas, major party nominees did not really campaign. They didn’t even travel to the conventions until after their nominations until maybe the 1930s or later.
Sammy Finkelman (db7fea) — 12/18/2016 @ 9:42 amI have had to explain to about 30 different people that presidential campaigns are put together with the sole purpose and strategy to win the requisite number of electoral votes within our federal system. A candidate’s winning the “popular” vote but not the electoral 270 or more is NOT the sign of a successful campaign or candidate. It says the losing campaign flubbed up royally. Were the Constitution ever to be amended so that the American Presidency was decided by pure national popular vote (which I highly doubt) campaigns would be run completely differently and voting/voter rules would be completely different than they are under the current system.
elissa (da4c50) — 12/18/2016 @ 9:52 amSammy, I imagine the lack of campaigning back in the day had to do with the logistical aspects of it. Until trains came along, it was impossible to travel far distances. But even on a train, depending upon how far a candidate would want to travel, that would require being away for days, maybe a few weeks at a time.
Today, with air travel, a candidate can fly to faraway states and get back home to Capitol Hill or the Governor’s Mansion by dinner time.
Cruz Supporter (102c9a) — 12/18/2016 @ 9:54 amamtrak trains have free wifi now, a lot of them
the acela express for sure so pigs like Mitch McConnell and his sleazy wife what just got paid off with a cabinet seat can wifi it up as they head into failmerica’s capitol
you’re paying for it so you should at least get some good feels knowing it’s there
especially at Christmas
happyfeet (28a91b) — 12/18/2016 @ 10:52 amSuppose a state passed a law that the governor appointed all the electors, who were “supposed” to vote as the state went, but voted for the governor’s party instead.
This would be OK?
Kevin M (25bbee) — 12/18/2016 @ 10:56 amNo, it was considered inappropriate and immodest to campaign for oneself.
And yes, the framers anticipated that elections would often go to the House. The electors’ function was to brainstorm, and produce a short list of the three most popular names for the House to choose from. Of course if someone was truly outstanding, like Washington, he’d get a majority and win, but in a normal year electors from Maine to Georgia, meeting separately, would surely put forward at least five or six names, of whom the three most popular would go on to the House.
Milhouse (40ca7b) — 12/18/2016 @ 10:59 amThis would be OK?
no no that would be an abomination Mr. M
happyfeet (28a91b) — 12/18/2016 @ 11:04 amNot only would it be OK, only a fool would expect them to vote any other way. Giving the governor the power to appoint the electors means giving him the state’s voice in the electoral college. He would surely appoint people he trusted to vote his way.
Again you seem to imagine that there exist or have ever existed would-be electors who go into the election not sure how they intend to vote, and willing to let their votes be decided by the election result. That’s not how it works. Not a single one of the current 538 electors, or of any electoral college since 1800, has ever gone in without a fixed intention how to vote, regardless of what the electorate says. The 538 Republicans who ran for the position of presidential elector this year all intended to vote for the Republican nominees, and the 538 Democrats who ran for those same positions all intended to vote for the Democrat ones. 306 of those R candidates and 232 of the D candidates won, and almost all of them still have the same intention they had a few months ago; a few have changed their minds.
Milhouse (40ca7b) — 12/18/2016 @ 11:07 amPut it this way: if a state gives its governor the power to fill senate vacancies (as most states do) does anyone imagine that the governor will not appoint someone from his party, who will vote with that party, regardless of what the state’s voters said when they elected the original senator?! Does anyone expect that the replacement senator, despite being from one party, will feel a duty to vote with the original senator’s party?!
Milhouse (40ca7b) — 12/18/2016 @ 11:10 am#95 Milhouse, if travel had been easier back then, they would have done it.
Cruz Supporter (102c9a) — 12/18/2016 @ 11:23 amBut she won teh Popular Vote…
https://static.pjmedia.com/instapundit/wp-content/uploads/2016/12/hillary_archielago_12-18-16-1.jpg
Colonel Haiku (2601c0) — 12/18/2016 @ 11:32 amNo, even in their own area they did not campaign for themselves. And when trains were invented they didn’t start campaigning. Until 1840 campaigns in the modern sense, with posters and buttons and slogans and songs, etc., didn’t even exist; there was just a lot of serious discussion and editorializing.
Milhouse (40ca7b) — 12/18/2016 @ 11:49 amHeh. Free market rules the day.
elissa (da4c50) — 12/18/2016 @ 2:35 pmNew York Post:
that’s so reader’s digest
love it
happyfeet (28a91b) — 12/18/2016 @ 2:45 pm#101 Milhouse,
Cruz Supporter (102c9a) — 12/18/2016 @ 2:54 pmOh, stop it.
The lack of good transportation back then affected everything in their lives.
If better transportation had been available at the time, they would have taken advantage of it to campaign.
giddy and also up
we gotta stop that pig
happyfeet (28a91b) — 12/18/2016 @ 3:02 pm104… No… milhouse is Everyman, he’s been everywhere and he’s lived for centuries. He knows all… don’tchu get it!?!?!?
Colonel Haiku (2601c0) — 12/18/2016 @ 3:02 pmR.I.P. Zsa Zsa Gabor
Icy (4a75f4) — 12/18/2016 @ 3:05 pmColonel, you’re right, I lost my head. I had totally forgotten James Monroe’s famous line about how he vowed to never do a whistle stop tour due to his principles. And James Polk said that good transportation was one of those European subversions. After all, Polk was opposed to Manifest Destiny! (LOL)
Cruz Supporter (102c9a) — 12/18/2016 @ 3:22 pmZsa Zsa Gabor was 99.
Cruz Supporter (102c9a) — 12/18/2016 @ 3:27 pmWow, she’d been married ten times, including to Conrad Hilton (yes, that Conrad Hilton) and to actor George Sanders.
she lived it all and also she lived it to the fullest i think
but
a lot of that involved some crafty marriaging
kinda like that slutty jackie o
and that’s not really the model going forward
but kudos to zsa zsa
happyfeet (28a91b) — 12/18/2016 @ 3:45 pmi love how Mr. Drudge’s been humiliating hapless geriatric skeeze Sumner Redstone
for *years* now
it’s truly glorious
happyfeet (28a91b) — 12/18/2016 @ 3:49 pmWhich wpuld seem odd, because they wouldn’t have a railroad for 20 years, lol.
Stella morabito points out the flaw in the CIA and the electoral college, they are subject to gramscian influences.
narciso (d1f714) — 12/18/2016 @ 4:12 pmYou all might wish to consider the expression “making a virtue of necessity”.
Not just transportation. Mass communication too. Even if you could get your show on the road, how would you get your message to the people? Drums? Smoke signals? Town criers? It was important to have newspapers on your side; local pols bringing out their loyals to hear you speak; and political machine ward heelers bringing out the vote.
nk (dbc370) — 12/18/2016 @ 4:26 pmI just pictured Trump over a smoky fire with a blanket “tweeting” out 140-puff messages. And Melania telling him, “Who’s going to see this in the middle of the night?”
nk (dbc370) — 12/18/2016 @ 4:29 pmnarciso, I specifically cited a “pre-railroad” president (Monroe) to illustrate how silly it is.
Cruz Supporter (102c9a) — 12/18/2016 @ 4:35 pmAnd here’s SNL trying to follow Alinsky Rule xth — make your tactics fun for your people. https://www.youtube.com/watch?v=IAhF8tPqafQ (Funnier than the Hollywood hasbeen commercial, anyway.)
nk (dbc370) — 12/18/2016 @ 4:40 pmand he looks down and says “I can’t even see it during the day”
steveg (5508fb) — 12/19/2016 @ 8:40 pm