It has been four months since Lloenflys's Gavel last published, but I am putting out an emergency bulletin this evening to announce that I'm in the process of writing up a piece on a decision that came down on Tuesday in the 10th Circuit Court of Appeals on the issue of Faithless Electors. I have a lot to say on this issue and this opinion provides a great opportunity to go into a thorough discussion of the issue, so I'm aiming to have that analysis done by Saturday at some point. However, I wanted to give a little snippet of what is to come to whet the appetite of those who are legally minded.
So ... what are we talking about here? What exactly is a "faithless elector" and why does it matter? Let's start with the basics. As I think most people are aware of at this point, the United States does not elect its president by a popular vote system. Instead, an archaic institution called the "Electoral College" actually casts votes. When people go to the polls to vote for president, what they're really doing is voting for a slate of electors in their state who have pledged to support the candidate that they are representing. In virtually no cases does anyone know who these electors actually are, other than the candidate's staff - who submitted the names to the state's election officials to nominate them for the position. These people don't campaign, we don't find out their names, they just exist as a formality. They have essentially one job - to show up to the official vote casting of the Electoral College and cast their ballot in favor of the person who won the most votes in their state on election day.
Occasionally, things break down. An elector maybe decides that things have changed and they aren't quite as in love with the candidate they pledged to support in the first place. Maybe their candidate didn't win the popular vote. Maybe their candidate made a terrible gaffe at the end of the election and they can no longer support that person. Maybe they just want to grandstand. In any case, if an elector deviates from the election results and casts a vote for someone other than the winner in their state, the elector is called a "faithless" elector.
States don't especially like this, and thirty of them have passed laws to try to force electors to cast their votes as the electorate has directed. In the 1950's the Supreme Court ruled that states can require electors to take an oath pledging to cast their vote as required by the result of the public vote. Nonetheless, occasionally an elector still deviates from the plan, and sometimes - as in this case - they do so even in a state where they pledged to follow the results of the election.
The big question therefore becomes "Is it Constitutional to force an elector to vote for the candidate they pledged to support?" The answer, according to the 10th Circuit, is no. Requiring them to take a pledge or oath is fine ... but if they choose to go their own way there is no way to stop them. It is this decision that I plan to analyze in greater detail over the next couple of days.
I see valid arguments on both sides of this issue. On one hand, states repeatedly are given the power to control elections in the Constitution. On the other hand, the office of Presidential Elector is a real constitutional office, one that has specific duties that cannot ignored or bypassed. We may balk at the idea that these people have something other than a merely ministerial role to play in a presidential election, but the better argument is probably that they do indeed have such freedom if they choose to exercise it. If we don't like that, well ... perhaps it will serve as a greater impetus to eliminate the Electoral College.
Alright, enough rambling without having read the opinion in question - I'll stop here for now. If you have any questions or comments please feel free to leave them in the comments section. If you have questions, I'll do my best to address them when I complete the more complete analysis in the coming days.
Thanks everyone who popped in for this (triumphant!?!) return of Lloenflys's Gavel, and keep on the lookout for the full writeup!
So ... what are we talking about here? What exactly is a "faithless elector" and why does it matter? Let's start with the basics. As I think most people are aware of at this point, the United States does not elect its president by a popular vote system. Instead, an archaic institution called the "Electoral College" actually casts votes. When people go to the polls to vote for president, what they're really doing is voting for a slate of electors in their state who have pledged to support the candidate that they are representing. In virtually no cases does anyone know who these electors actually are, other than the candidate's staff - who submitted the names to the state's election officials to nominate them for the position. These people don't campaign, we don't find out their names, they just exist as a formality. They have essentially one job - to show up to the official vote casting of the Electoral College and cast their ballot in favor of the person who won the most votes in their state on election day.
Occasionally, things break down. An elector maybe decides that things have changed and they aren't quite as in love with the candidate they pledged to support in the first place. Maybe their candidate didn't win the popular vote. Maybe their candidate made a terrible gaffe at the end of the election and they can no longer support that person. Maybe they just want to grandstand. In any case, if an elector deviates from the election results and casts a vote for someone other than the winner in their state, the elector is called a "faithless" elector.
States don't especially like this, and thirty of them have passed laws to try to force electors to cast their votes as the electorate has directed. In the 1950's the Supreme Court ruled that states can require electors to take an oath pledging to cast their vote as required by the result of the public vote. Nonetheless, occasionally an elector still deviates from the plan, and sometimes - as in this case - they do so even in a state where they pledged to follow the results of the election.
The big question therefore becomes "Is it Constitutional to force an elector to vote for the candidate they pledged to support?" The answer, according to the 10th Circuit, is no. Requiring them to take a pledge or oath is fine ... but if they choose to go their own way there is no way to stop them. It is this decision that I plan to analyze in greater detail over the next couple of days.
I see valid arguments on both sides of this issue. On one hand, states repeatedly are given the power to control elections in the Constitution. On the other hand, the office of Presidential Elector is a real constitutional office, one that has specific duties that cannot ignored or bypassed. We may balk at the idea that these people have something other than a merely ministerial role to play in a presidential election, but the better argument is probably that they do indeed have such freedom if they choose to exercise it. If we don't like that, well ... perhaps it will serve as a greater impetus to eliminate the Electoral College.
Alright, enough rambling without having read the opinion in question - I'll stop here for now. If you have any questions or comments please feel free to leave them in the comments section. If you have questions, I'll do my best to address them when I complete the more complete analysis in the coming days.
Thanks everyone who popped in for this (triumphant!?!) return of Lloenflys's Gavel, and keep on the lookout for the full writeup!
