What happens if, on December 19, more than three-dozen Trump electors abandon their pledges, their party and their promises, and vote for Hillary instead of Trump? Is that it? Election over? Coup finished? Three dozen no names and nobodies just reversed the votes of more than 60 million in more than 30 states? Not so fast, as the football analyst legend Lee Corso would say.
Congress and courts established a range of precautions against such rogue actions.
At the outset, it is important to note that the mythical version of the electoral college — as a “check” against the electorate with a right to vote one’s “conscience” against the people — was rejected in the very first election it was used, subsequently invalidated formally in the adoption of the 12th Amendment, and recognized by the Supreme Court and leading jurists and scholars alike. The twinned SCOTUS decisions of McPherson v. Blacker, 146 U.S. 1 (1892) (states enjoy plenary and exclusive power over electors) and Ray v. Blair, 343 U.S. 214 (1952) (finding since the first election of electors role as “simply to register the will of the people”) made that history clear. Whatever Hamilton thought, the actual voters rejected it, and the Twelfth Amendment chose the voters’ method rather than Hamilton’s. The role of the electors was as a messenger, not as the message. Like a Wells Fargo courier or modern day postal deliverer, neither has any right to open the mail and change the message within merely because they may not like the message.
First in remedies, in states like Texas, a majority of the electors themselves can designate such electors ineligible for office, discard their vote, and replace them with a loyal elector. Indeed, Trump could even seek an emergency writ to compel such an outcome, based either on express state law, or the repeatedly found common-law duty to vote the will of the people, as the courts of New York, Nebraska, and California found, and most courts on most states would be highly likely to equally find. Indeed, no court has ever held an elector can lawfully vote against the will of the people that elected them. The decisions of Thomas v. Cohen, 146 Misc. 836 (N.Y. Sup. Ct. 1933) (electors have a common-law duty to vote for the party nominee that won the state); State v. Wait, 138 N.W. 159 (Neb. 1912) (any elector who would “openly declare” that they will not perform the duty to vote for their party nominee “vacates their places…as presidential electors” as a matter of law; and Spreckels v. Graham, 228 P. 1040 (Cal. 1924) (electors are ministerial officers as “messengers whose sole duty it is to certify and transmit the election returns” which is “part of unwritten law” of the states.)
Second, the Governors of any state, or the Secretary of State thereof, may reject faithless rogue elector votes. How? Section 6 of Title 3 under the codified laws of the United States authorize the “executive of each state” to ascertain the vote of the electors “under and in pursuance of the laws” of their state. This includes an express right to resolve any “controversy or contest concerning the appointment of all or any of the electors of such state.” Section 15 of Title 3 of the United States Code further affirms this gubernatorial prerogative. The formality of certification is the form through which the governor can act. The certification of electors is something the state executive, not the electors, does. The “proof” of how the electors actually voted, and the conformity of their votes to the law, is vested in the state executive’s ascertainment of the vote, not the electors’ exclusive choice.
Third, under section 15 of Title 3 of the United States Code, Congress need not accept either the electors own rogue votes, nor any state executive’s certification of the same. A House and Senate member can formally object, triggering a Congressional resolution of the accurate elector vote. The objection, to be considered, must be in writing, state its basis, and signed by at least one Senator and one member of the House. The only basis for objection, aside from the formalities of certification and receipt of a singular certification, is the votes of the electors were not “regularly given.” The certified vote by the state executive must still be accepted unless both the House and the Senate concur that the elector’s vote was not “regularly given.” Of course, if electors failed to honor their oath, breached their pledge, and ignored the will of their state’s voters, left un-remedied by a state executive, then the House and Senate could correct such actions of a rogue faithless elector, and restore the electoral vote to the will of the people in that state, as an elector’s vote not being “regularly given.” Here, again, Republican domination of both chambers of Congress assures this likely use of such a remedy, and the political question doctrine constricts any court review of the Congressional decision.
And the faithless, rogue elector? If the state desires, many have the means to both fine, and criminally prosecute, a rogue elector, via direct state laws making such a rogue vote a crime, or perjury and election fraud statutes enforceable for broken perjury pledges to vote the party nominee, depending upon the state. Justice Story called a rogue elector a “usurpation” by a “dishonorable” actor committing a “fraud upon his constituents.” So, in short, if you follow the advice of Martin Sheen in his video eliciting elector rebellions, you might find yourself like Charlie Sheen evading cops in the film “The Wraith.”
[Screengrab via EWTN]
Robert Barnes is a California -based attorney whose practice focuses on tax defense and First Amendment law,
This is an opinion piece. The views expressed in this article are those of just the author.