
Electoral College Members Can Defy Voters’ Wishes, Court Rules - johnny313
https://www.nytimes.com/2019/08/22/us/politics/electoral-college-faithless-elector.html
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cybersnowflake
Whats the point of having actual human electors if they can't be faithless?
Couldn't the Founding Fathers just say tally up the electoral votes if a
mechanical transition from popular to electoral votes was desired?

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ColanR
That was the precise idea - and in an age when riding from the states to DC
could take a month or more, the mechanism for that tally was electors who
physically travelled to DC, and were sworn to vote as they were directed by
the populace.

~~~
teilo
Proof?

We do have records of the arguments that were made for the elector system
mandated by the Constitution, and they demonstrate that your "precise idea" is
a fabrication.

Here is some reading for you:
[https://en.wikipedia.org/wiki/Federalist_No._68](https://en.wikipedia.org/wiki/Federalist_No._68)

It had almost nothing to do with the practicality (or lack thereof) of the
popular vote. The debates focused upon balancing the right of the people with
the right of the states, i.e., the ability of states with large populations to
make the votes of smaller states irrelevant. Hamilton also focused on the need
for trusted electors so that the people both had a say, and trusted
individuals could avoid rash populism. I.e., the value of a representative
form of election. The transient nature of the college was also important. The
electors would have one task, and then be dismissed. They could not be people
with a vested interest, such as members of congress, governors, etc. This also
made them less likely to be influenced by foreign powers, as they would not be
electors long enough to be so influenced.

~~~
cmurf
There is nothing in 68 about states rights or relative populations. Central to
68 is the connection between regular citizen voters choosing Electors,
directly, amongst themselves. They were to be deliberative, self-evidently
independent from partisan party politics, chosen from the general population

Federalist 68 proposes a mechanism we have not used since before the Civil
War. The ballot would have been write-in only, and the name you were writing
in was a person who lived in your own state, not a presidential candidate.

 _but to men chosen by the people for the special purpose_

 _The choice of SEVERAL, to form an intermediate body of electors, will be
much less apt to convulse the community with any extraordinary or violent
movements, than the choice of ONE_

Unfortunately, the Founders appear to not have anticipated the wholesale
corruption the party system would employ to sabotage both common sense and
deliberate design, by making laws at state level to explicitly make Electors
not from the general population but exclusively party loyalists: people who
have sworn money and allegiance to their respective party. Who and what you
are really voting for when you tick a box for a candidate, is not the
candidate, but the candidate's party and that party system, and the state laws
say the popular vote result is to cause that party's pre-selected loyalists to
become Electors.

What we have isn't anything like Federalist 68.

~~~
salawat
That is what bugs me. There is no realistic information shared about electors.
It seems to me these people's character should be of the utmost importance
from what I've read on the subject. Their neutrality from partisan politik was
supposed to be a feature to guard against dropping chief executive authority
on a candidate of ill nature.

It's a pattern that happens all over the government. The masses are the first
filter, a second pass is done by a smaller (generally more recognized) few,
and then reconcile until everyone is satisfied.

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AnimalMuppet
It's the 10th Circuit Court of Appeals, so it's not binding on the rest of the
country. It would be good if this went to the Supreme Court and was ruled on
while it's just one elector, and isn't going to actually change an election.
(Lawrence Lessig is on the side that won this ruling. He's trying for a
Supreme Court decision, one way or the other. But the only way to get that is
if the other side appeals this ruling, and the Supreme Court agrees to hear
the case.)

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egdod
Faithless electors are hardly a new phenomenon.

[https://en.wikipedia.org/wiki/Faithless_elector](https://en.wikipedia.org/wiki/Faithless_elector)

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em3rgent0rdr
Exactly. This is how it has basically been for the past 230 years. The ruling
in no way "kicks at the foundation of how America chooses presidents".

A few states recently enacted an unconstitutional law to attempt to void the
faithless electors vote, and all this ruling does is clarify that those state
laws were indeed unconstitutional.

~~~
Pinckney
I agree that the 12th amendment doesn't allow states to void the faithless
elector's vote, but it would be constitutionally permissible for them to
criminalize faithless voting, would it not?

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dctoedt
> _it would be constitutionally permissible for them to criminalize faithless
> voting, would it not?_

No, according to the court's opinion ("slip opinion"), starting at p.73 of the
PDF [0]. I've posted excerpts in a top-level comment.

[0]
[https://www.ca10.uscourts.gov/opinions/18/18-1173.pdf](https://www.ca10.uscourts.gov/opinions/18/18-1173.pdf)

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jdlyga
The problem with the system is that it's not one person one vote. If you're in
New York, your vote is basically worthless. And it shows. You barely ever see
presidential election ads on TV, or get any robocalls. Meanwhile, people in
swing states are inundated.

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cmurf
The party system has completely perverted the intent of the Electoral College,
most centrally by populating it with party loyalists, the worst possible
people on earth for this task.

Federalist 68 says Electors were to be deliberative people, people chosen for
this task, and not to any preestablished body. Electors chosen from the
general mass by their fellow citizens will best be able to carry out
"complicated investigations". There is no complication or investigation in the
current process! It's 180 degrees from Federalist 68.

 _Nothing was more to be desired than that every practicable obstacle should
be opposed to cabal, intrigue, and corruption. These most deadly adversaries
of republican government might naturally have been expected to make their
approaches from more than one querter, but chiefly from the desire in foreign
powers to gain an improper ascendant in our councils._

The present system lends itself directly to blackmail because those with all
the money both choose Electors, and are Electors. They are not chosen from the
general mass, they are not chosen by the people. And further:

 _They have not made the appointment of the President to depend on any
preexisting bodies of men, who might be tampered with beforehand to prostitute
their votes;_

What persons could possibly be more of a prostitute than party loyalists? We
would be better off if the Electors were randomly selected from the general
population, minus the expressly listed people in Federalist 68: politicians or
_other person holding a place of trust or profit_.

[https://avalon.law.yale.edu/18th_century/fed68.asp](https://avalon.law.yale.edu/18th_century/fed68.asp)

~~~
jfengel
Party loyalists are the opposite of prostitutes. Prostitutes can be bought.
Party loyalists are True Believers. They don't make a lot of money, and they
spend years refining their messages with each other. They have a sincere
belief in what they're doing, and believe it to be the best way to run a
country.

They may well be wrong, stupid, or even malignant. They certainly have some
strange bedfellows: winning elections or votes means crossing that 50% level,
which requires making friends with people whose interests are only partially
aligned with yours (as opposed to the people whose interests are diametrically
opposed to yours). Their loyalty is at least partly sunk-cost fallacy: it
takes a long time to be a party insider and they can't just hop over to any
other party without losing those years of trust built up.

But what they aren't, is prostitutes. For better or worse, they believe.

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lettergram
Wasn’t that part of the original intent?

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spamizbad
Divining original intent is weird because it's from an era where not even
adult white males had universal suffrage. Prior to the mid 19th century,
nearly all states required you to be a land-owner to vote. I've always viewed
the electoral college as an enlightenment-era hack to work around a scenario
where one state would "liberalize" suffrage to garner outsized influence
during a national election. If this was 1790, non-land owners deciding an
election would be the feared "tyranny of the majority" the founders sought to
prevent; and that's not even counting suffrage for women and non-whites.

At least _in theory_ (putting aside any voter suppression efforts), the US
today has near universal suffrage for all adults, with the only remaining
restrictions being placed on felons (of which we have many). So it really
doesn't make sense: We functionally have the popular vote, but we have this
weird legacy layer on top that, in 2000 and 2016, selected someone who lost
the popular vote.

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caymanjim
We don't have to divine the original intent. There are historical documents
that lay out what the founders were thinking, not least of which is The
Federalist Papers #68.

[1]:
[https://www.historycentral.com/elections/Federalist.html](https://www.historycentral.com/elections/Federalist.html)

[2]:
[https://en.wikipedia.org/wiki/Federalist_No._68](https://en.wikipedia.org/wiki/Federalist_No._68)

~~~
kasey_junk
Using the federalist papers as an example of a straight forward reading of
intent is pretty bold.

I for one won’t pay any tribute to them than exceeds their merit.

~~~
philwelch
The federalist papers were intended to convince Americans to support the new
constitution so it would get ratified, so I feel that Alexander Hamilton
deliberately going out of his way to discuss how it was supposed to work
captures something about the intent of those who ratified it based on that
sales pitch.

~~~
kasey_junk
There is approximately 200 years of the federalist papers being used in court
decisions and it’s been controversial the whole time.

The Wikipedia article on them has a surprisingly good discussion on their use
in the courts.

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dctoedt
It's worth noting that the decision — by a three-judge panel of the appellate
court — is only an interim decision.

In essence, the _trial_ court took a shortcut — in software terms, an early
return or -exit: The trial judge concluded that, when Colorado's secretary of
state removed a member of the Colorado delegation to the Electoral College
(for having voted for Kasich instead of Clinton), the removed "elector" had no
legal right to sue for nominal damages because the Colorado secretary of state
had the legal authority to remove the elector. The trial judge therefore
summarily tossed out the removed elector's lawsuit.

The appellate court panel concluded that the trial judge got the law wrong,
and therefore the removed elector _did_ have the right to sue for nominal
damages. The panel sent the case back to the trial court so that the lawsuit
could (in theory) proceed normally.

The state has the right to appeal further, to the entire appellate court
sitting "en banc" and/or to the Supreme Court.

Here are some excerpts from the three-judge appellate panel's opinion (which I
find compelling, incidentally):

"[T]he Supremacy Clause is broader than preemption; it immunizes all federal
functions from limitations or control by the states." Slip op. at 75 (citation
omitted).

"Unlike the President appointing subordinates in the executive department,
states appointing presidential electors are not selecting inferior state
officials to assist in carrying out a function for which the state is
ultimately responsible. Presidential electors exercise a federal function—not
a state function—when casting their ballots. Burroughs, 290 U.S. at 545. When
undertaking that federal function, presidential electors are not executing
their appointing power's function but their own." _Id._ at 82-83.

"As the text and structure show, the Twelfth Amendment allows no room for the
states to interfere with the electors’ exercise of their federal functions."
_Id._ at 86.

"Dictionaries from the relevant period support Mr. Baca’s contention that the
drafters of the Twelfth Amendment intended electors to exercise discretion in
casting their votes for President and Vice President." _Id._ at 88.

"As these sources reflect, the definitions of elector, vote, and ballot have a
common theme: they all imply the right to make a choice or voice an individual
opinion. We therefore agree with Mr. Baca that the use of these terms supports
a determination that the electors, once appointed, are free to vote as they
choose." _Id._ at 90 (footnote omitted).

"In summary, the text of the Constitution makes clear that states do not have
the constitutional authority to interfere with presidential electors who
exercise their constitutional right to vote for the President and Vice
President candidates of their choice." _Id._ at 93.

"Although we concur with _[Colorado 's]_ review of historical practice _[of
elector pledges],_ we cannot agree that these practices dictate the result the
Department seeks. First, and most importantly, the practices employed—even
over a long period—cannot overcome the allocation of power in the
Constitution. McPherson, 146 U.S. at 35–36. Second, there is an opposing
historical practice at play: a history of anomalous votes, all of which have
been counted by Congress." _Id._ at 99. "This uninterrupted history of
Congress counting every anomalous vote cast by an elector weighs against a
conclusion that historical practices allow states to enforce elector pledges
by removing faithless electors from office and nullifying their votes." _Id._
at 101.

[0]
[https://www.ca10.uscourts.gov/opinions/18/18-1173.pdf](https://www.ca10.uscourts.gov/opinions/18/18-1173.pdf)

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forgingahead
I really find it amusing that it was Democrats accusing _Trump_ of not
accepting the outcome of an election....

~~~
Fjolsvith
I still don't understand why they call Trump a populist president when [HRC]
had the bigger populist vote count.

~~~
krustyburger
I think you may be confusing the words populist and popular.

