Why There Are Not Risks on Both Sides of the “Faithless Elector” Cases

At the Supreme Court oral argument yesterday in the “faithless electors” cases, Justice Kavanaugh creatively invoked what he called “the avoid-chaos principle of judging,” by which he meant that “if it’s a close call or a tiebreaker” . . .  “we should not facilitate or create chaos.”  But a central claim Larry Lessig makes in his argument that the Constitution requires presidential electors to be free to vote for whomever they’d like, regardless of the popular vote in their state, is that chaos lurks on both sides of the case:  the Court and the country face significant risks either way.  Everyone is aware of the risks should Lessig’s side prevail: if electors are free to defy the popular vote, the country would be thrown into turmoil, or worse, in a close election should enough electors do this that it flips the outcome of the presidential election.  That’s the specter of chaos to which Justice Kavanaugh was referring.  Indeed, much of the discussion of how likely electors would be to defy their state’s popular vote ignores the legitimation effect of Supreme Court decisions; a Supreme Court decision announcing, for the first time, that the Constitution gives electors the right to vote their own preferences would bolster the moral legitimacy of electors taking this decision into their own hands. 

            But I want to focus instead on the supposed risks on the other side.  Lessig asserts those risks trace to the 20th Amendment.  The Amendment provides that if a president-elect dies after the Electoral College vote on Dec. 14th but before inauguration, the vice-president elect becomes President.  But the Amendment says nothing about what happens if a candidate who wins the popular vote in various states on Nov. 3rd dies in the 5-6 weeks before the Electoral College votes.  If states are free to bind their electors to vote for the popular-vote victor, then what happens?  If those electors are still bound to vote for a dead candidate, the contest would then end up in the House of Representatives, if no candidate is able to gain a majority of the electoral votes.  The House would then choose the President (one state, one vote) from among the three candidates who received the largest number of electoral votes.  So on this story, death of the winner between election day and the Electoral College vote presents its own risk of electoral meltdown.  But if we interpret the Constitution to mean electors are always free in all circumstances to vote for whomever they prefer, we avoid this risk because electors could ignore a state law binding them to vote for the popular-vote winner, even if that person has died.

            The 20th Amendment, however, does not create any risk of this sort.  The states that bind their electors can easily address the remote possibility of death in this 5-6 week window by amending those laws to specify what the electors can or must do should that occur.  These state laws do not do that now because when legislatures were enacting these laws, no one was thinking about a situation that has never occurred and is only a remote possibility.  But this is indeed a gap in state law and those laws should be fixed to address this possibility.  The states might bind the electors to vote for the same-party candidate who has been nominated for Vice President, which is the likely result, or they could specify that electors are free to vote their conscience under this surreal sceanario.  This is an option completely open to the states even if the Court holds that states can bind their electors.  In other words, we do not need the nuclear option of leaving electors free to vote their own preferences to fully address the purported risks that would arise should this rare scenario ever arise.

            But let’s say states do not get around to amending these laws:  what would happen, as a practical matter, in this scenario with electors legally bound to vote for a dead winner?  These electors are not going to be any more bound, realistically, than electors from states that do not formally bind their electors.  Most of the states do not impose any personal sanction on electors who violate these laws.  Washington and Oklahoma are the only states that impose a fine, of $1000; two other states make it a crime, though South Carolina does not specify what the punishment is.  Other state laws merely providing for replacing a faithless elector with another one. 

            Faced with an apparent legal obligation to vote for a dead candidate in a few states that either impose a fine or have the power to replace the elector, most electors are surely going to go ahead in these extreme circumstances and vote for a living candidate.  And almost certainly, they would vote in the same way the electors from the same party in other states who are not bound decide to cast their vote in this unusual context.  That would most likely be the vice-presidential candidate of the same party as the presidential candidate who won that state, but has now died.  States would be highly unlikely to impose any fines for that action; even if they did, I have no doubt those electors would be made whole after the fact.  For the same reason, states that have the power to replace the elector would be unlikely to do so.  And even if they did, the elector is no worse off for having ignored state law by declining to vote for a dead candidate.

            In deciding whether the Constitution prohibits states from legally binding their electors to vote for the state’s popular vote winner, these issues about the potential consequences of the decision might or might not be relevant to different Justices.  But Lessig believes it is important to neutralize the argument that a decision in his favor would create the risk of destabilizing presidential elections.  That’s why it’s important to suggest that there are significant risks no matter which way the Court comes out.  But that is simply wrong.  There is an easy, readily available way to avoid any risk that, if states can bind their electors, they will bind them to vote for dead candidates.  State law can fully eliminate this risk.  The Court should feel free to resolve the cases without any concern that permitting states to bind their electors creates any meaningful risk, even if we ever face, for the first time, a situation in which a winning candidate dies in the 5-6 weeks between the election and the meeting of the Electoral College.  

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