Monday, December 12, 2016

'Faithless Electors'

I've been avoiding most election issues, particularly as they have become more and more conspiracy-theory-like, but I've been meaning for a while to talk a bit about electors in the Electoral College, and since they electors place their votes one week from today, it seems about as good a time as any.

I've been actively arguing in favor of the Electoral College for well over a decade now, and the issue of 'faithless electors' has always been the major beef people have with it. How dare we have a system in which the electors can vote against the will of the people! This is the first election that I have come across people arguing that electors should be 'faithless', but the same basic idea is really in play.

The Electoral College was invented in part in order to admit the 'sense of the people' into the election of the new Office of the President, and the tweaks since then, whatever else their motive, have certainly been with the intent of make it better suited for this. Can the electors vote against the will of the people? Sure, strictly speaking, in exactly the same sense that Congress can act against the will of the people. Are they ever supposed to do so? No.

We get into the habit of thinking that as people vote, so is their will, but there are clearly cases where this is not true. The most common case that has actually required action by the Electoral College is when the candidate the people actually voted for died before the electors met. In such a case, of course, what the electors do is they, usually in practice on advisement from their parties, cast a vote for an alternative that they think will make a reasonable fit for what the people would want. Voting, despite its value, suffers from the fact that it's a snapshot-petition, not a rigorous accounting of what the people want or need. It is also, although we tend to ignore this even more, highly ambiguous -- when people cast a vote for President they may be voting for the candidate, for the party, for a set of policies, or for a lesser evil. That vote may be with firm conviction or with the greatest hesitation and reluctance. (This is why talk of a 'mandate' is always a bit absurd.)

Thus the point of a body like the Electoral College is to make sure these matters are considered in the actual election. There is no possible rule that can guarantee that they are done so in the right way -- considering them requires looking at the endless variations of circumstance that every practical decision of importance requires. Of the 157 EC votes that have not followed the popular vote,

71 have been cast because the candidate for which the popular vote went died;
30 (in 1832) were protest votes against Martin Van Buren;
23 (in 1836) were protest votes against the Vice Presidential candidate Richard M. Johnson;
7 (in 1828) were protest votes against John Calhoun;
6 (in 1808) were protest votes against James Madison;
4 (in 1896) were due to the fact that two different parties, the Democratic Party and the People's Party, endorsed the same Presidential candidate but different Vice Presidential candidates, and some People's Party electors decided to vote the Democratic slate for the latter;
3 were protest votes against Richard Nixon;
3 (in 1812) were protest votes against Vice Presidential candidate Jared Ingersoll;
2 (in 1832) were protest abstentions against Henry Clay;
1 (in 1820) is supposedly because the elector believed that giving the votes unanimously was not usually reasonable;
1 (in 1948) was due to the fact that the Tennessee Democratic Party had a schism;
1 (in 1988) was to draw attention to the fact that electors could vote for someone other than the person who won the popular vote for the state;
1 (in 2000) was a protest for the lack of Congressional representation for the District of Columbia;
the remaining 4 were for reasons unknown.

Not all of these were equally savvy moves, and one may reasonably disparage the wisdom of some of them, but the fact of the matter is that if you are genuinely trying to represent the will of the people instead of shoehorning the people into an arbitrary number, this is exactly the sort of deviation you would expect. The protest votes against candidates all correspond to issues that were genuinely part of the election; several raise questions not about candidates but about the system itself, concerns which certainly exist; several are due to the complications of party politics, which does not always easily resolve into a vote for a particular candidate.

Thus in this election, if the Democratic party electors (at least 2 from Washington and some from Colorado) who have said that they will not cast a vote for Clinton actually follow through, this is actually reflecting the fact that there is a more complicated process going on in the Democratic party than just supporting Clinton -- in this case, anger over the politics of picking Democratic candidates. If any Republican electors, like the 1 from Texas, refuse to vote for Trump, this reflects something genuinely going on among the people.

To be sure, electors can ignore the people; in this sense, though, they are like any representatives. Their purpose, however, is to make the sense of the people known, even in cases in which the popular vote numbers are potentially misleading for one reason or another. It's thus entirely reasonable to expect that they will generally follow the popular vote -- and there also needs to be a recognition that there may sometimes be genuine popular reason to deviate somewhat.

In any case, to affect the election, at least 37 electoral college votes, perhaps more, would need to be moved. This has not happened since 1872 (when 63 votes deviated from the popular vote), and that was because Horace Greeley died, so there was no point in voting for him. It is extraordinarily unlikely that we will see anything like this. If it happens, there would certainly be an uproar. But that many votes shifting would also convey something about the uneasiness of the people, which vote tallies could never do.

If it did happen, of course, so that nobody wins the EC, it kicks the Presidential decision to the House of Representatives, who will vote on it. However, each state delegation only gets one vote, and, unlike the Electoral College, they cannot choose anyone they want -- they are locked into a choice among the top three Electoral College contenders. It's difficult to imagine, however much they might not like Trump, that the Republicans, who dominant the state delegations in the House, would not worry about the repercussions they might experience from their constituencies if they voted for Clinton, so Trump would almost certainly win. But if it went that far, that too would tell us something about the sense of the people.

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