The faithless elector possibility

Dec 15 01:22 UTC 2000

I'm not hearing much about this in the media, but there is (at least) one
more presidential election drama still to be played out: the meeting of
the Electoral College on Monday, December 18.

If any presidential electors fail to vote as expected on Monday, there
will be a gigantic blaze of publicity, and all who do so will briefly
become nationally known, vilified or praised along party lines. 
 
The right of electors to vote for whoever they choose was the original
intent of the Constitution, and the same "safe-harbor" provisions which
the Supreme Court found to be so important would require that their votes
be counted, regardless of whether they were voting with their slate.

Seven electors since WWII have voted for someone other than the candidate
they were elected to vote for.

If there are a net of at least two switches away from Bush, causing a
change or at least continued doubt about the outcome, THAT will be the
coup de grace for the Electoral College.  All this business about
tradition and reverence for the constitutional scheme of states, etc.,
will all be cast aside, and an amendment will move forward at record
speed with strong bipartisan support.

Of course Gore (if he gains enough votes) would be put in the incredibly
awkward position of winning the election after having conceded twice, but
Democrats would be outraged if he went through with his claimed intention
to "not accept" such a result.  Or he could go back on that and face the
outrage of the Republicans.  Either way, his political career would
presumably be over.

The precise arithmetic: take two or more votes away from Bush, and the
election goes to the House.  Add three or more votes to Gore, and he wins
the presidency.

In general, electors are party loyalists who are unlikely to be tempted by
any thought of voting for the enemy.  Practically any elector of either
party who "flipped" would also face being vilified and disowned by family,
friends, political and business associates.  Their lives would also be
picked apart by the media, in search of the bribe or secret that partisans
would assume caused them to defect.

But electors are not a monolithic army hand-picked by state party leaders
or the presidential campaigns.  They are, instead, mostly chosen at
congressional district party caucuses, and receive zero formal scrutiny or
vetting. 

They tend to be much older than average party activists.  That usually
means they have a track record of party loyalty; on the other hand, that
also means they are not likely to have a political future at stake. 

It's not hard to imagine a Bush elector, a longtime active Republican, who
has qualms about actually putting GWB in the White House, or vice versa
for a Democratic elector.  My father's Republican cousin, now dead, was
the co-chair of Nixon's 1968 campaign in Michigan, but detested Nixon and
actually voted for Hubert Humphrey.  What is harder to imagine is such a
person defying everything in their background and surroundings and casting
the treasonous vote right out in public.

Trying to envision a Bush elector who would "flip", I can see two
plausible scenarios. 

Scenario One would be an elderly, curmudgeonly lawyer, someone who is
accustomed to going against the grain.  Possibly, someone who was a
Republican in Alabama or Mississippi or some other southern state before
the 1960s, when Republicans were reviled and hated in the South.  He would
have to be a lawyer, because in order to motivate him, he would need to be
horribly (if secretly so far) shocked by the Supreme Court's Bush v. Gore
decision.  Being elderly, he would not have a career to lose.  Despite
being an elector, he would also have to be someone who was uneasy about
the Electoral College and electing the popular vote non-winner, so he
wouldn't be too concerned that his defection might bring about its
abolition.

Elderly political figures becoming apostates is not at all unknown. 
Consider former liberal Democratic congresswoman Martha Griffiths, a
Republican for some years now, or Barry Goldwater in his old age endorsing
gays in the military. 

Scenario Two would be a black Republican, chosen as elector in an
overwhelmingly black district, perhaps in Cleveland or St. Louis.  
Whatever his reason for being a Republican, he lives in an environment
where almost everyone he knows is not a Republican, so again, he has to be
used to going against the grain.

On the other hand, black Republicans have a well-earned reputation for
opportunism.  Joining the Republican Party as a black person offers
tremendous opportunities, since the party is eager to defend itself
against charges of racism, and tends to have a shortage of activists and a
surplus of money.  I don't mean that to sound too negative: we shouldn't
look down on someone for making a wise career move, and if you're a black
person interested in public policy from other than a welfare-state
perspective, being a Republican is a very smart thing to do.

Becoming a national figure might be an appealing prospect for someone who
already has a tendency to be opportunistic, and the downside is a lot less
for a black person who lives in an all-black congressional district than
it would be for a white person who would have to contend with the rage of
his Republican neighbors.  Imagine three black Republican electors sitting
around a kitchen table realizing that they themselves could change the
outcome of the presidential election, and that their neighbors would
proclaim them as heroes. 

In the meantime, Republican strategists, undoubtedly well aware of all the
above, are very likely out seeking Gore electors to vote for Bush.  This
is much, much easier to do than the reverse, for several reasons.

First, Gore has already conceded, and most of the Gore electors probably
figure they're just going through the motions, not really deciding the
outcome. They might even see it as "healing" and "patriotic" to preserve
the outcome that the public is already accepting.  Thus the rage against
them, and the glare of publicity is going to be vastly less.

Second, a large proportion of the Gore electors are conservative Democrats
(not really very enthusiastic about Gore) who live in conservative rural
areas with few active Democrats as neighbors and associates.  Like the
black Republicans, these Democrats are somewhat insulated from the
downside risks of being seen as a traitor to their party. 

Note, too, that since the urban black congressional districts in
Bush-carried states are basically in Ohio and Missouri, which vote on
Eastern and Central time, the Bush campaign would have a crucial two hours
to get to Gore delegates in California.  Probably the right move for Bush
would be to convince California delegates in advance to vote Republican
**only** if their votes were actually needed.  And it's easier to imagine
a Gore elector agreeing to that, "to preserve the outcome."

Of course, this doesn't protect Bush if the three Alaska electors all vote
for Gore, but that would be unlikely in the extreme.

My prediction: two or three Bush-to-Gore switches, made up for by five or
six Gore-to-Bush switches.  A total of seven to nine, and a net of two to
four electoral vote gain for Bush.  Gigantic publicity over all this,
partisan recriminations, etc., etc.

Awful downside for me personally: the presidential elector lists on my
website (sure to attract attention during the coming melee) are a mess,
and there's no time to fix them before Monday. 

Damn.

response 2 of 57:

Dec 15 02:25 UTC 2000

(I'm *so* tempted to say, "Get over it already!," except Larry's suggestion
of a scenario where an elector switches his vote is certainly plausible,
even if Larry's actual suggestions are, at best, offensive, and, at worst,
borderline racism.)  :P

response 4 of 57:

Dec 15 04:17 UTC 2000

Re 1.  I'm not recommending or approving it, but any "oath" is a private
matter between the elector and his/her party, not a matter of law.

There are some state laws designed to inhibit or prevent the faithless
elector problems, in about half the states.  Most of them are quite weak,
but Michigan simply provides that the faithless elector be removed and
his/her vote cast correctly by a replacement.

response 6 of 57:

Dec 15 05:00 UTC 2000

I don't consider the faithless elector a realistic probability at all in 
this political climate.

response 8 of 57:

Dec 15 05:04 UTC 2000

Re 3.  The electors vote completely in public.  Michigan's electors
meet in the state senate chamber of the state capitol.  All ballots
are signed with the name of the elector.

response 10 of 57:

Dec 15 05:21 UTC 2000

Re 9.  Anyone can attend.  The meeting is held in the state senate
chamber, and visitors/spectators sit in the balcony. 

In theory, you need a ticket, which you could get from any member of the
legislature.  But last time, Steve Andre and I were waved in without
anyone looking at our tickets -- I guess the tickets were just sort of a
souvenir.  Obviously they may be stricter this time.

response 12 of 57:

Dec 15 10:19 UTC 2000

resp:7 resp:2

(hmm.  I seem to miss where a person's skin color makes 
him "opportunistic," even if you intended it as a compliment.  I seem 
to miss where a person's skin color makes one's neighbors "more 
accepting" of what amounts to political treason.  I seem to miss where 
a person's skin color [or age, if you prefer] makes him, frankly, 
stupid enough to think that "becoming a national figure" by throwing a 
country that, while divided in preference, seems to want to move on, 
*back* into "political uncertainty" is desirable.  [you and I know that 
the election isn't over until the electoral college votes, but I 
certainly won't deny that, up until this year, most Americans 
considered the electoral college vote a non-issue, if they were even 
aware of it.]  I'll politely point out that Benedict Arnold is a 
national figure, and that the "opportunity" you suggest is of 
comparable quality.)

(you haven't clarified how, while joining the GOP becomes a "wise 
career move," switching one's vote in the electoral college becomes, by 
your implication, wiser.  you also haven't clarified how skin color, 
or "race" if you prefer, enters into the decision at all.  you could 
just have easily suggested a scenario where a Bush elector chosen from 
an overwhelmingly Democratic area switches his vote.)

(plus, your suggested scenarios seem to based in a logic that considers 
Gore to be a desirable alternative to Bush, and Bush shouldn't be 
president.  nearly half of voting Americans didn't see it that way in 
November. granted, public opinion has been just as divided, if not 
Balkanized, over the vote controversy in Florida, and if Gore were 
still fighting there, faithless electors would still be a very real 
possibility. with Gore's gracious concession and call for national 
healing, faithless electors become little more than a political wet 
dream.) 

(your first 10 paragraphs in #0 are perfectly good analyses.  you are 
technically correct when you point out that the election isn't over, 
and that, technically, it could still go in Gore's favor.  it's when 
you slip into fantasy playland by suggesting multiple vote switches in 
the electoral college that I feel you're going overboard, hence my 
temptation.  but don't let me kill your overactive imagination.) 

response 14 of 57:

Dec 15 14:50 UTC 2000

(OK, I'll bite:  are there any pledged electors who fit your basic 
profile?)

response 16 of 57:

Dec 15 15:24 UTC 2000

I don't know.  I find most of these predictions pretty implausible.  Eight
faithless electors?  No way.  One would be a bit surprising, much more seems
unlikely.

Admittedly this is a more tempting year to jump ship in a way - the election
result already seems to have been decided on technicalities by someone other
than the electorate, so a person might think their decision on technicalities
is as good a anyone elses.  But so far as I can tell, most faithless electors
in the past have been protest votes only cast with the knowledge that it
wouldn't alter the outcome of the election.  I can't imagine many people
taking the step of further delegitimizing an already dubious election.

Imagining Gore phoning Hawaii to ask his electors to vote for Bush is fun,
but I can't take the scenario very seriously.

Of course, some pretty unimaginable things already have happened.

response 18 of 57:

Dec 15 16:30 UTC 2000

In regard to faithless electors, let me remind y'all of the following,
which appeared several days before the recent election:


        Bush Set to Fight An Electoral College Loss
          by Michael Kramer
          New York Daily News, November 1, 2000

   They're not only thinking the unthinkable, they're planning for 
   it. 

   Quietly, some of George W. Bush's advisers are preparing for the 
   ultimate "what if" scenario: What happens if Bush wins the 
   popular vote for President, but loses the White House because Al 
   Gore's won the majority of electoral votes? 

   "Then we win," says a Gore aide. "You play by the rules in force 
   at the time. If the nation were really outraged by the 
   possibility, then the system would have been changed long ago. 
   The history is clear." 

   Yes it is, and it's fascinating. Twice before, Presidents have 
   been elected after losing the popular vote. In 1876, New York 
   Gov. Samuel Tilden won the popular vote (51% to 48%) but lost the 
   presidency to Rutherford Hayes, who won by a single electoral 
   vote. Twelve years later, in 1888, Grover Cleveland won the 
   popular vote by a single percentage point, but lost his 
   reelection bid to Benjamin Harrison by 65 electoral votes. 

   The same thing almost happened in 1976 when Jimmy Carter topped 
   Gerald Ford by about 1.7 million votes. Back then, a switch of 
   about 5,500 votes in Ohio and 6,500 votes in Mississippi would 
   have given those states to Ford, enough for an Electoral College 
   victory. But because it didn't happen, the upset over its having 
   almost happened faded rapidly. 

   Why do we even have the Electoral College? Simply put, the 
   Founding Fathers didn't imagine the emergence of national 
   candidates when they wrote the Constitution, and, in any event, 
   they didn't trust the people to elect the President directly. 

   A lot has changed since then, including the anachronistic view 
   that the majority should be feared. But the Electoral College 
   remains. 

   So what if Gore wins such crucial battleground states as Florida, 
   Michigan and Pennsylvania and thus captures the magic 270 
   electoral votes while Bush wins the overall nationwide popular 
   vote? 

   "The one thing we don't do is roll over," says a Bush aide. "We 
   fight." 

   How? The core of the emerging Bush strategy assumes a popular 
   uprising, stoked by the Bushies themselves, of course. 

   In league with the campaign _ which is preparing talking points 
   about the Electoral College's essential unfairness _ a massive 
   talk-radio operation would be encouraged. "We'd have ads, too," 
   says a Bush aide, "and I think you can count on the media to fuel 
   the thing big-time. Even papers that supported Gore might turn 
   against him because the will of the people will have been 
   thwarted." 

   Local business leaders will be urged to lobby their customers, 
   the clergy will be asked to speak up for the popular will and 
   Team Bush will enlist as many Democrats as possible to scream as 
   loud as they can. "You think 'Democrats for Democracy' would be a 
   catchy term for them?" asks a Bush adviser. 

   The universe of people who would be targeted by this insurrection 
   is small _ the 538 currently anonymous folks called electors, 
   people chosen by the campaigns and their state party 
   organizations as a reward for their service over the years. 

   If you bother to read the small print when you're in the booth, 
   you'll notice that when you vote for President you're really 
   selecting presidential electors who favor one candidate or the 
   other. 

   Generally, these electors are not legally bound to support the 
   person they're supposedly pledged to when they gather in the 
   various state capitals to cast their ballots on Dec. 18. The 
   rules vary from state to state, but enough of the electors could 
   theoretically switch to Bush if they wanted to _ if there was 
   sufficient pressure on them to ratify the popular verdict. 

   And what would happen if the "what if" scenario came out the 
   other way? "Then we'd be doing the same thing Bush is apparently 
   getting ready for," says a Gore campaign official. "They're just 
   further along in their contingency thinking than we are. But we 
   wouldn't lie down without a fight, either." 

response 20 of 57:

Dec 15 17:09 UTC 2000

Re 19.  Reread #0.  For most Republican electors, including probably
ALL of the ones in Tennessee, flipping would be almost suicidally self-
destructive.

response 22 of 57:

Dec 15 18:24 UTC 2000

Another data point on the faithless elector debate.  This is the current
editorial in The Nation.  Though I sympathize somewhat, I do not agree
with what is suggested here.  NEVERTHELESS, this should demonstrate that
there are voices out there prepared to thank the flippers rather than
denigrate them. 


   The Nation editorial
   Wanted: Three Electors

   Let the chattering classes focus on chads and undervotes and
   Florida recounts and what the courts--state and federal, all
   the way up to the Supreme Court--would or wouldn't do. Let
   us not forget that the candidate who won the national
   popular vote falls only three votes short of a clear
   Electoral College majority even without Florida. If on
   December 18, the day the Electoral College convenes to cast
   its ballot, three Republican electors decide on their own to
   vote for him, all the speculation is moot.

   Our purpose is to argue that our three hypothetical electors
   should so decide and that American democracy would be the
   better for it. And that this particular election, because it
   is so close and because it has raised fundamental issues of
   voting rights, provides the right historic moment for such a
   gesture. In 1960, another close election, Ted Lewis argued
   in The Nation that there was such revulsion against the
   Electoral College that it "would certainly now be on its way
   out" if it hadn't "functioned on November 8 in accordance
   with the national will."
   
   Election 2000's clouded outcome has highlighted some glaring
   flaws in our electoral system--uncounted votes, confused
   voters, voters rejected (see David Corn, on page 5)--which
   has stimulated a growing sentiment for reform. And so while
   the country's mood is hospitable to reform, why not abolish
   the most undemocratic institution of all--the Electoral
   College?
   
   That's where our hypothetical three electors come in. By
   casting their votes for the popular-vote winner, in the
   short run they would guarantee the election of the man who
   won the popular vote; but more important, in the long run
   such a gesture might break the antidemocratic stranglehold
   of the Electoral College on American politics. Let's be
   clear: We are not urging them to vote for the popular-vote
   winner because we support Al Gore. We are urging them to
   cast such a vote because it would be the right thing to do--
   legally, morally and politically.
   
   It will immediately be objected that what we are proposing
   is an invitation to electoral anarchy, that history has
   rightly stigmatized the thirteen electors who switched their
   votes in previous presidential elections as "faithless
   electors." Besides, Vice President Gore himself has said he
   would "not accept" Republican electors. But the Vice
   President has no say about the matter, any more than he has
   a say about not accepting the vote of those whose party
   affiliations or (political) motives he finds repugnant. Even
   a Gore concession speech doesn't bind the electors.
   
   As for those faithless electors, we would argue that if you
   have a system of electors instead of direct democracy, the
   possibility of defection goes with the package. What is
   more, if three or more Republican electors decide to cross
   over, far from creating electoral anarchy, their actions
   would be legally defensible, morally beneficial and
   politically desirable.
   
   Legally, because under the Electoral College electors are
   not bound by the Constitution to follow the popular vote,
   and in twenty-four states they remain free to vote their
   conscience. In twenty-six others they are required by state
   law to follow the popular vote. Scholars like Akhil Reed
   Amar and Mark Tushnet argue that electors are totally free
   agents.
   
   Morally, because their action would prevent the presidency
   of a man who lost the popular vote. It also brings us a step
   closer to the democratic ideal of one person, one vote. The
   Electoral College was created by the Framers under a deal
   with the slaveholding states to give those states added
   clout in the new Union. The Framers distrusted the popular
   will. As Alexander Hamilton wrote in The Federalist Papers,
   "A small number of persons, selected by their fellow-
   citizens from the general mass, will be most likely to
   possess the information and discernment requisite to such
   complicated investigations" to choose the "Chief
   Magistrate." They did not anticipate political parties or
   the current practice of electors pledging to vote in
   accordance with the popular vote in their state.
   
   Politically, because ultimately the fortunes of both
   parties--and minority parties as well--would be strengthened
   by a more democratic government. The smaller states now
   wield disproportionate influence in elections. And without
   the need to troll for electoral votes, candidates would be
   motivated to campaign in all fifty states, not merely the
   big contested ones.
   
   Passing a constitutional amendment to abolish the Electoral
   College will not be easy. But the dramatic gesture of three
   electors or more defying the Electoral College could
   concentrate the nation's attention wonderfully and help
   jump-start a movement for reform. It might at least
   stimulate collateral reforms in the states, along the lines
   of the present systems of appointing electors in Maine and
   Nebraska, only carrying it further.
   
   In the past, faithless electors were eccentric loners. This
   year they could be electors of conscience--the people's
   electors. Their action would cause a firestorm in the House.
   But such high constitutional drama would open a national
   debate on the legitimacy of the Electoral College. It's time
   to start that debate.

response 24 of 57:

Dec 15 18:52 UTC 2000

Here is my 2 cents worth.  I think this has all been premature.  It always
has been.  If the election isn't over until the Electoral College votes, there
is NO reason for the candidates to conceed BEFORE that election.  

flippers or no flippers, if the american people do not choose the president,
(ie, popular vote) then the election hasn't happened until the EC votes.  So
"president-elect" is jumping the gun.  And I can't wait to see what happens.