Elector Roulette: ‘Faithless’ Fakeout!
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The Numbers. Mark December 19, 2016 as the day that electoral vote post-election follies became a game of roulette: The Democrats pointed the gun and pulled the trigger — and found out that the chamber was indeed loaded, but the electoral-vote gun was pointed in the wrong direction (go to 1:27:55 – 1:29:00). While two GOP electors defected, five Democrats did — and three more tried to switch (one each in CO, ME, MN) but two of this trio changed back; a loyalist elector who voted for Hillary replaced the other.

The final Electoral College tally was 304 (57 percent) for Trump, 227 (42 percent) for Hillary and 5 (one percent) for others. Four Washington State electors defected from Hillary, three voting for Colin Powell and one for Faith Spotted Eagle, a Sioux Nation leader who opposed both the Keystone XL Pipeline and the Dakota Access Pipeline. A fifth Democratic elector defected to Bernie Sanders. Two Texas electors defected from Trump, one voting for Ohio GOP Gov. John Kasich and one for former Texas GOP Congressman Ron Paul.

Seven faithless electors tops the 1808 record for the most such votes in a presidential election. The last election in which a faithless elector voted for someone from another party was 1972, when a GOP elector declined to vote for Richard Nixon. Courtesy of her campaign manager John Podesta’s open assault on the Electoral College, and wayward polling, Hillary now is truly “living history.”

More “faithless” elector metrics: There have been 157 faithless electors in the American republic’s 58 presidential elections. Of the total 71 voted otherwise because their candidate expired, 3 abstained, and 83 (53 percent) deserted their party’s chosen candidate. In 1872 63 of 66 electors pledged to vote for deceased Democrat Horace Greeley abstained, with the other three having their votes for Greeley disallowed by Congress. Thirty states plus the District of Columbia require elector fealty, with most having enacted penalties for defiance. (As for VPs, in 1836 the entire 23-vote Virginia delegation — Democrats — abstained from their party’s VP pick.)

Factor in the final state popular vote totals, which show that Hillary’s official 2.8 million popular vote margin was less than her margin in California alone (4.3 million); add in her New York landslide (1.7 million) and in the two states she won by 6 million votes — more than twice her nationwide popular vote margin. Thus can a pure popular vote system allow a few large states to determine election outcome. Hillary’s popular vote margin nationwide was 65.8 – 63.0 million (48.1-46.2 percent).

The Electoral College and Pure Democracy. In Reform and Continuity (1971) the late constitutional scholar Alexander Bickel, best known for spearheading the legal team that won the 1971 Pentagon Papers case, warned:

There may be a time when societies can digest radical structural change, when they are young and pliant, relatively small, containable, and readily understandable; when men can see the scenery shift without losing their sense of direction. We are not such a society. We do well to remain attached to institutions that are often the products more of accident than of design, or that no longer answer to their original plans, but that challenge our resilience and inventiveness in bending old arrangements to present purposes with no outward change.… [Reform and Continuity, p. 3]

George Will writes of “our excellent electoral vote system” (italics mine):

Those who demand direct popular election of the president should be advised that this is what we have — in 51 jurisdictions.… And the electoral vote system quarantines electoral disputes. Imagine the 1960 election under direct popular election: John Kennedy’s popular vote margin over Richard Nixon was just 118,574. If all 68,838,219 popular votes had been poured into a single national bucket, there would have been powerful incentives to challenge the results in many of the nation’s 170,000 precincts.

Far from being an unchanged anachronism, frozen like a fly in 18th-century amber, the Electoral College has evolved, shaping and shaped by the party system.… [T]he Electoral College shapes the character of majorities by helping to generate those that are neither geographically nor ideologically narrow, and that depict, more than the popular vote does, national decisiveness.…

The 48 elections since 1824 have produced 18 presidents that received less than 50 percent of the popular vote. The greatest of them, Abraham Lincoln, received 39.9 percent in 1860.…

Refer back to the New York Times’s “The Two Americas of 2016” electoral maps. It shows that Donald Trump captured 85 percent of the nation’s geographic area, with Democratic votes confined to the entire left coast and the right coast north of the Carolinas, save for Pennsylvania (and a 1-1 split in Maine). At the county level the AP scorecard shows (rounded figure) that of 3,100 counties 2,600 went for Trump versus 500 for Hillary, an 84-16 percent win for Trump.

The outcome yesterday makes the Jan. 6, 2017 certification by Congress of Monday’s Electoral College vote a mere formality. One more elector consideration: The Trump Justice Department should investigate fully the death threats and other vicious harassment of Trump electors that the Obama administration has ignored.

Yet real damage has been done. A post-election taboo has been broken. And once broken, such norms are not easily restored. Only after at least a generation passes without such an effort might this lamentable episode be viewed as a one-off historical footnote.

Lesson for all: Plenary elector discretion is a double-edged sword.

One Final Note. Students of history know its many ironies, the latest being that Hillary’s Electoral College loss came exactly 18 years to the date after her husband Bill was impeached by the House of Representatives in 1998.

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