'Faithless electors' pay for deviating from voters' wishes

In perhaps the final action of the 2016 presidential election, three individuals in Washington state were ordered this month to pay fines of $1,000 each for their actions as "faithless electors." Each of them violated their duty to cast their votes as presidential electors in accordance with the votes of the citizens of the state, and voted instead for candidates of their own selection.

Nationwide, seven persons chosen to be members of the Electoral College took the extreme action of violating their duty to follow the expressed intent of the voters of their state. Since there were only seven nationwide (four in Washington, two in Texas and one in Hawaii), and all were refusing to vote for Hilary Clinton, the losing candidate, the actions were puffs of smoke in the air, of no real significance. But they cast light on the details of how we elect our presidents, and demonstrate that the potential for a major electoral and constitutional disaster exists.

The arithmetic is simple. It takes 270 electoral votes to elect a president. The 2016 winner received 304 electoral votes. It would have taken 34 faithless electors from the winning side to change the outcome. A lesser number could, however put the results of a closer election in question.

To fully understand the nature of the actions of these individuals, it is necessary to go back to the 1787 Constitutional Convention, which was faced with defining the office of the chief executive of the nation, and deciding how the United States would select the individual to fill the office. It solution to the second issue was the invention of the Electoral College.

The Convention had debated long and hard before it settled upon the election of a single president, serving a four-year term, and eligible for reelection. (Among the alternatives rejected were a single seven-year term and a triumvirate representing each of the three major geographic areas of the country.)

When the Convention turned to the method of selection, it was truly in uncharted waters. A number of ideas surfaced, but the one with the most traction appeared to be selection by Congress. Many delegates had reservations about this, believing that would put too much power in the legislative branch. One concern of the delegates was that in a country as large as the United States was even then, the voters would not know anything about the candidates. There were no political parties, which in fact were frowned upon as "factions." (In fact the Constitution makes no provision of any kind relating to political parties.)

The proposal for congressional selection was close to being adopted, when the idea of "electors" was introduced. The concept came from James Madison, and was based on the idea that a select group would be most qualified to decide on the presidency. Alexander Hamilton spoke of "A small number of persons, selected by their fellow citizens from the general mass, will be the most likely to possess the information and discernment requisite to such complicated tasks." Clearly the idea was that the members of the electoral college would be entitled to contribute their opinions

The question remained, how are the electors to be chosen? The Convention could not resolve it and ended up by providing that each state should determine the method of selection. But the underlying idea was that the electors, however chosen, would be a select group, capable of choosing the most qualified individual to serve.

But history can alter the most universally accepted assumptions. Although the Convention was unwilling to impose any fixed method of selection of electors on the states, by 1836 popular vote on a statewide basis was virtually a universal practice in the states, as it is today. The role of the electors was essentially eliminated. The process became a far cry from what Hamilton envisioned, having been rendered obsolete by popular election. Electors are still formally nominated, and in some states their names are on the ballot, but voters now vote for the candidate at the head of the ticket. The office of elector is purely a formal and ceremonial one. At least that's how it is almost universally regarded.

Which brings us to the faithless electors, who have arrogated to themselves the right to use an antiquated formality to superimpose their own views on the votes of the people. Three of the electors voted for Colin Powell, as a protest against Donald Trump. (The logic escapes me.) Another, a Native American activist, voted for Faith Spotted Eagle, an opponent of the controversial pipeline being protested in South Dakota. Another simply wanted to protest the electoral college system.

The law of Washington state requires electors to vote for the winner of the state's vote. It was the violation of that law that resulted in the fines that were affirmed by an administrative law judge. (The electors have expressed an intention to appeal.) About half the states have similar laws. But in all states it is assumed that the office of elector is essentially honorary.

What would happen if there were sufficient faithless electors to affect the results of a presidential election? Would the courts intervene to enforce the state law or the universally accepted assumption with respect to the role of the electors? Would the faithless votes be counted? Could Congress, which affirms the results, refuse to accept these contested votes? Another Bush v Gore litigation would be a possibility. Or the Supreme Court might decide that the issue is a "political question" and decline to intervene, leaving the matter to be decided by Congress.

The Electoral College is a very different institution than that envisioned by the delegates who adopted the Constitution, as are the means of communication which allow all voters familiarity with the candidates. Our presidential election reflects our national DNA that mandates universal adult citizen suffrage, and, although controversial because the Electoral College vote it does not necessarily reflect the national popular vote, it is the accepted law of the land. As such it should be honored unless and until it is changed. By the people.