Faithless or Faithful Electors?

Key Question Being Explored in This Insight:

Can a "faithless" elector ever act in the true spirit of democracy, much like a juror who follows their conscience, even when the law says otherwise?

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Can a “faithless” elector ever act in the true spirit of democracy, much like a juror who follows their conscience, even when the law says otherwise?

Image courtesy of interviewee. October 17, 2024

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This video discusses the concept of "faithless electors" in the context of the United States electoral system. In the U.S., citizens do not vote directly for the president; instead, they elect electors who cast their votes in the Electoral College. A faithless elector is one who chooses to vote contrary to their state's popular vote. This video practice is relatively rare but has occurred, notably in 2016, raising concerns about its potential impact on close elections.

The Constitution does not clearly dictate how states should choose or bind their electors, allowing them to decide their own methods. Currently, 32 states have laws that bind electors to vote according to the popular vote, while 18 states lack such laws, creating ambiguity in those jurisdictions.

In 2020, the Supreme Court ruled that states can bind their electors, reinforcing the trend toward ensuring that electors reflect the popular vote. This video also considers a movement known as the National Popular Vote Compact, which aims for states to commit to awarding their electoral votes to the national popular vote winner, regardless of their state result.

The author explores the moral and democratic implications of electors acting independently of voter preferences, comparing this to jury independence in the legal system. While some argue that electors can serve as a check on "illegitimate results," the prevailing view is that they should follow the popular vote to ensure democratic representation.

The discussion concludes with a recognition of the challenges inherent in amending the Constitution and the likely continuation of the current electoral framework, especially in the context of upcoming elections where the focus remains on swing states rather than the national popular vote.

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Here are five key points from the video regarding the electoral process in the United States:

1. **Electoral College System**: The U.S. presidential election process is indirect; citizens vote for electors, who then cast the state's vote for president in the Electoral College. The Constitution does not mandate that states elect their electors through popular vote, which gives states the flexibility to choose their own method for selecting electors.

2. **Faithless Electors**: The concept of "faithless electors" arises when electors choose to vote contrary to the popular vote outcome in their respective states. This has occurred infrequently but raises questions about the legitimacy of electors’ votes, especially in closely contested elections. Notably, the Supreme Court has confirmed that states can require electors to follow the popular vote.

3. **Constitutional and Legal Convideo**: The Constitution leaves it to the states to determine how to select electors. Many states have opted for a popular vote process, but some do not have laws binding electors to the popular vote, creating uncertainty regarding their actions if they choose to be faithless.

4. **National Popular Vote Initiative**: There is a movement to create a National Popular Vote Compact, where states agree to allocate their electoral votes to the winner of the national popular vote rather than the state’s vote. This proposal aims to address the disparity between the Electoral College and the national popular vote, potentially changing how electors are instructed.

5. **Challenges and Historical Convideo**: The discussion reflects a broader critique of the Electoral College as an outdated mechanism that could undermine democratic principles. The video suggests that the system is rooted in an 18th-century distrust of direct democracy, and while there are discussions around reforming the electoral process, significant changes have yet to occur, particularly in light of upcoming elections.

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Here are some key quotes extracted from the video that encapsulate the main themes and ideas presented:

1. **Introduction to Electors:**
- "An elector is a representative of a delegate that each state, according to its rules, sends to cast that state's vote for President of the United States."

2. **Nature of the Electoral College:**
- "In the United States, we have this odd, some would say, anachronistic system in which we, the people do not directly vote for president of the United States."

3. **Concept of Faithless Electors:**
- "The phrase means... what would happen if an elector... decided on their own to cast a vote for someone else."

4. **Supreme Court's Role:**
- "In 2020, the Supreme Court took two cases from faithless electors... and unanimously ruled that states have the power to set up state instructions."

5. **State Variability:**
- "We have 32 states out of the 50 to vote the popular vote... 18 that don't have an instruction... it's still not clear what would happen."

6. **Proposed Changes:**
- "There is a movement... called the National Popular Compact in which states [would] vote for whomever wins the national popular vote."

7. **Jury System Comparison:**
- "I compared the democratic argument for faithless electors... with another phenomenon in the United States... [where jurors sometimes vote according to conscience]."

8. **Electoral Implications:**
- "What if... the candidate wins the electoral vote but has lost the popular vote?"

9. **Reflections on the Founders' Intent:**
- "The role that the founders wanted the electoral college to play... to not be rubber stamping illegitimate results."

10. **Current Situation:**
- "No one is talking about trying to get electors to do this independent or faithless thing."

11. **Critique of the System:**
- "...one of the many ways in which we are straight jacketed into an 18th century model of distrust for the people."

12. **Conclusion on Future Elections:**
- "Let's hope that the results give us a popular vote in line with electoral college."

These quotes highlight the complexities and controversies surrounding the Electoral College, the role of electors, the potential for reforms, and the challenges of aligning the electoral outcomes with the popular will in the United States.

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An elector is a representative of a delegate

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that each state, according to its rules, sends to cast

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that state's vote for President of the United States.

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So in the United States, we have this odd, some would say,

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anachronistic system in which we, the people do not directly

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vote for president of the United States.

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We elect electors who then cast, quote unquote, our vote,

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or the states vote for President of the United States

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in something called the electoral college.

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This term faithless, elector, of course, is a loaded term

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because it sounds so pejorative,

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but let's just go over it technically

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and then maybe we can do it morally or ethically.

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All, all the phrase means is what would happen

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if an elector who was elected to vote according

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to its state's popular result

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or popular vote, decided on their own, on her own

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and his own to cast a vote for someone else

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for some other reason.

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So faithless in the sense of not being bound

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by a pledge after all that they take to vote according

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to the state's popular vote, this has happened, by the way,

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in 2016 seven times.

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Um, and so we do have a recent history

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of there being these faithless voter things.

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And in a close election,

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and we are anticipating a razor thin close election.

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This problem of faithless electors could tilt the electoral

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college result.

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The Constitution is fairly silent on this in the sense that

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the Constitution left it to the states to decide

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how they would elect their electors.

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It's a shock, but there's nothing in the Constitution

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that says states have to let the people

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by popular vote elector or elect, elect the electors.

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Um, so the states, according to the Constitution,

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were wide open to have any system.

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They could have had just the state legislatures appoint

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or elect the delegates.

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Now it's turned out that every state does

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use popular vote to elect its electors, and

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therefore the Constitution doesn't give us much guidance,

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in terms of what to do with this problem of,

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if you elect electors to do one thing

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and they do the opposite.

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Law practice has gone in a democratic direction.

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That is to say, to enfranchise the people

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to elect the electors, the constitutional norm, like many

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of the parts of the United States Constitution,

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hedged its bet with democracy, two tiers for democracy,

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but one reservation

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For what to do, if the people converted to a mob

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or the people were, in Alexander Hamilton,

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found in the United States, if, if they were seduced by

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low intrigue or the arts of partisan politics.

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And therefore the elector electoral college was there

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to provide a screen, a buffer, a check

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on something going wrong with, popular prejudice.

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Now that part, it's still there technically,

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hence the faithless elector could cast it himself,

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herself in this role, but it doesn't happen very often.

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And we have a debate in the United States about whether it's

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proper or even legal to do this.

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In 2020, the Supreme Court took two cases

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from faithless electors in Colorado

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and Washington state that occurred in the Hillary Clinton,

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Donald Trump election in 2016.

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And the Supreme Court unanimously ruled

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that states have the power to set up

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laws to bind electors, to vote according

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to state instructions.

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And as we said in each state, that instruction is to

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be bound by the popular vote that the state can refuse

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to certify votes from faithless, electors can replace them,

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can fine and punish them.

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For, this going on,

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this was the first time this Supreme Court

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actually weighed in on this.

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And so what we have now, we have 32 states out of the 50

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that do have these laws that bind electors

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to vote the popular vote, there's still 18

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that don't have an instruction and

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therefore, it it in those states, it's still not clear

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what would happen since they're not being faithless,

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technically to any state law.

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If there's state law changes,

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this court certainly could be called a con to say what the,

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whether those changes were legitimate.

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I don't anticipate any of the 32

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that do require this pledge.

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Going back and given this Supreme Court's approval, I think

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if states that 18 other states act,

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they would probably go in the direction of requiring,

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a similar pledge.

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Now, there is one wrinkle here.

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It would take a constitutional amendment to abolish

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the electoral college

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and simply elect the president according to popular vote.

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But there is this movement in the United States called the

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National Popular Compact in which you could get states

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to change their laws.

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And the proposal is that states should,

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should bind themselves to instruct their electors

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To vote for whomever wins the national popular vote,

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not necessarily the vote in the state.

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So this would auto correct this difference

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between electoral college and the national popular vote.

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And the proposal is that as soon

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as states controlling 270 electoral votes,

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namely a majority of electoral college, as soon

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as they all agreed it would go into effect

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and they would now have the new instruction you were asking

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about, which with the new instruction was vote, vote

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for the national winner.

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I wrote this law review article in which I sort

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of hedged on this.

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I compared the democratic argument

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for faithless.

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Electors are independent electors with a,

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another phenomenon in the United States.

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And the other phenomenon in the United States is that juries

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are selected and bound to do one thing,

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which is to vote the law.

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But sometimes they revolt,

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sometimes they vote verdicts according to conscience

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and say, this law is no good,

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or this police action was unfathomable.

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And I know what the law says,

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but my conscience says otherwise.

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It is a fact about the jury system that if

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a juror votes this independent way

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or somewhat say this lawlessly, we live with it.

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We, we live, we live with it,

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because we believe that there ought to be this wiggle room

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for verdicts according to conscience.

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And the argument is that the jurors are well situated

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democratically to represent the views and values

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and sentiments of the people.

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So the question I raised was, is there a**l?

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Could you draw an analogy between the democratic role

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of jury revolts or jury independence

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and a democratic argument for,

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electoral college independence or electoral independence?

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And I said, no. And yes, so the no is no, they're,

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they can't claim to be acting democratically 'cause

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'cause they, they're just rogues that they, who

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who was this elector to decide this?

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Now, you know, the people voted one way in the state

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and they're just signing, well, I,

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I won't vote for Donald Trump.

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I won't vote for Joe Biden, I won't vote for Kamala Harris.

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It just seems like they have no standing.

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They have, they represent no one but themselves.

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So I thought, eh, that that doesn't work.

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But I thought, yes, in this one sense,

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what if as did occur in 2016,

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the candidate wins the electoral

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or is about to win the electoral college vote,

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but has lost the popular vote?

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Donald Trump in 2016 lost the popular vote

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to Hillary Clinton by some 2.8 million votes,

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but won the, the electoral college.

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I thought that in that sense, we democracy,

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popular sovereignty, the will

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of the people is being thwarted,

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that there would be a democratic argument in those

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situations for an elector to say,

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I'm not gonna allow this to happen.

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I'm gonna vote for the winner of the national popular vote

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because that's the democratic thing to do.

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Um, and I thought that harks back to the role

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that the founders wanted the electoral college to play,

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which is to not be rubber stamping

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illegitimate results.

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I am struck by the fact that unlike 2016,

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unlike 2020 in the United States, no one is talking

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about trying to get electors

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to do this independent or faithless thing.

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In that sense, my takeaway is the Supreme Court decided in

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2020, they pretty much decided this issue.

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And I don't,

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and there's, there has been no media blitz,

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there has been no campaigning to do this.

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I still think it's possible

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that the argument we're having about this role of electors

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could fuel this movement we talked about, which is

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for the National Compact of States to say, let's all agree

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to instruct our electors to vote for the winner

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of the national popular vote and we'll end this problem.

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And I do think it's a problem.

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It's, to me it is, one

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of the many ways in which we are straight jacketed

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into an 18th century model of distrust for the people

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that ha has no validity in contemporary politics

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and contemporary ethics.

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And yet we're, we're stuck with it, if

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that's the right term, because it's so, so hard

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to amend the Constitution of the United States.

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It's just it doesn't happen very often

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unlike other countries.

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And since we're stuck with it, something has to give,

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it's not gonna give in 2024.

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And let's hope that the, the results

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give us a popular vote in line with electoral college.

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Though if you follow the election at all,

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all the attention is on the seven swing states.

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Not the na it doesn't matter who's wins

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00:11:36.325 --> 00:11:37.565
the national popular vote.

209
00:11:37.985 --> 00:11:41.325
And that, that is bizarre, I think tremendously bizarre.

Understanding the Electoral College and Faithless Electors

00:00:00 - An elector is a representative of a delegate that each state, according to its rules, sends to cast that state's vote for President of the United States. So in the United States, we have this odd, some would say, anachronistic system in which we, the people do not directly vote for president of the United States. We elect electors who then cast, quote unquote, our vote, or the states vote for President of the United States in something called the electoral college.

00:00:34 - because it sounds so pejorative, but let's just go over it technically and then maybe we can do it morally or ethically. All, all the phrase means is what would happen if an elector who was elected to vote according to its state's popular result or popular vote, decided on their own, on her own and his own to cast a vote for someone else

00:01:05 - So faithless in the sense of not being bound by a pledge after all that they take to vote according to the state's popular vote, this has happened, by the way, in 2016 seven times. and so we do have a recent history of there being these faithless voter things. And in a close election, and we are anticipating a razor thin close election.

Electoral College and State Authority: Constitutional Ambiguities

00:01:39 - college result. The Constitution is fairly silent on this in the sense that the Constitution left it to the states to decide how they would elect their electors. It's a shock, but there's nothing in the Constitution that says states have to let the people by popular vote elector or elect, elect the electors.

00:02:08 - were wide open to have any system. They could have had just the state legislatures appoint or elect the delegates. Now it's turned out that every state does use popular vote to elect its electors, and therefore the Constitution doesn't give us much guidance, in terms of what to do with this problem of, if you elect electors to do one thing and they do the opposite.

00:02:41 - That is to say, to enfranchise the people to elect the electors, the constitutional norm, like many of the parts of the United States Constitution, hedged its bet with democracy, two tiers for democracy, but one reservation For what to do, if the people converted to a mob or the people were, in Alexander Hamilton,

Faithless Electors: Legal Boundaries and Supreme Court Decisions

00:03:11 - low intrigue or the arts of partisan politics. And therefore the elector electoral college was there to provide a screen, a buffer, a check on something going wrong with, popular prejudice. Now that part, it's still there technically, hence the faithless elector could cast it himself, herself in this role, but it doesn't happen very often.

00:03:43 - proper or even legal to do this. In 2020, the Supreme Court took two cases from faithless electors in Colorado and Washington state that occurred in the Hillary Clinton, Donald Trump election in 2016. And the Supreme Court unanimously ruled that states have the power to set up

00:04:15 - to state instructions. And as we said in each state, that instruction is to be bound by the popular vote that the state can refuse to certify votes from faithless, electors can replace them, can fine and punish them. For, this going on, this was the first time this Supreme Court actually weighed in on this. And so what we have now, we have 32 states out of the 50

Revisiting Electoral College: The Push for National Popular Vote

00:04:48 - to vote the popular vote, there's still 18 that don't have an instruction and therefore, it it in those states, it's still not clear what would happen since they're not being faithless, technically to any state law. If there's state law changes, this court certainly could be called a con to say what the, whether those changes were legitimate. I don't anticipate any of the 32 that do require this pledge. Going back and given this Supreme Court's approval, I think

00:05:20 - they would probably go in the direction of requiring, a similar pledge. Now, there is one wrinkle here. It would take a constitutional amendment to abolish the electoral college and simply elect the president according to popular vote. But there is this movement in the United States called the National Popular Compact in which you could get states to change their laws. And the proposal is that states should,

00:05:58 - To vote for whomever wins the national popular vote, not necessarily the vote in the state. So this would auto correct this difference between electoral college and the national popular vote. And the proposal is that as soon as states controlling 270 electoral votes, namely a majority of electoral college, as soon

Electoral College Ethics: Conscience vs. Mandate

00:06:26 - and they would now have the new instruction you were asking about, which with the new instruction was vote, vote for the national winner. I wrote this law review article in which I sort of hedged on this. I compared the democratic argument for faithless. Electors are independent electors with a, another phenomenon in the United States.

00:06:58 - are selected and bound to do one thing, which is to vote the law. But sometimes they revolt, sometimes they vote verdicts according to conscience and say, this law is no good, or this police action was unfathomable. And I know what the law says, but my conscience says otherwise. It is a fact about the jury system that if

00:07:30 - or somewhat say this lawlessly, we live with it. We, we live, we live with it, because we believe that there ought to be this wiggle room for verdicts according to conscience. And the argument is that the jurors are well situated democratically to represent the views and values and sentiments of the people. So the question I raised was, is there a**l?

Electoral Independence vs. Democratic Responsibility

00:07:59 - of jury revolts or jury independence and a democratic argument for, electoral college independence or electoral independence? And I said, no. And yes, so the no is no, they're, they can't claim to be acting democratically 'cause 'cause they, they're just rogues that they, who who was this elector to decide this? Now, you know, the people voted one way in the state

00:08:28 - I won't vote for Donald Trump. I won't vote for Joe Biden, I won't vote for Kamala Harris. It just seems like they have no standing. They have, they represent no one but themselves. So I thought, eh, that that doesn't work. But I thought, yes, in this one sense, what if as did occur in 2016, the candidate wins the electoral or is about to win the electoral college vote, but has lost the popular vote?

00:09:03 - to Hillary Clinton by some 2.8 million votes, but won the, the electoral college. I thought that in that sense, we democracy, popular sovereignty, the will of the people is being thwarted, that there would be a democratic argument in those situations for an elector to say, I'm not gonna allow this to happen. I'm gonna vote for the winner of the national popular vote

Reevaluating the Role of Electors in Modern Democracy

00:09:32 - and I thought that harks back to the role that the founders wanted the electoral college to play, which is to not be rubber stamping illegitimate results. I am struck by the fact that unlike 2016, unlike 2020 in the United States, no one is talking about trying to get electors to do this independent or faithless thing. In that sense, my takeaway is the Supreme Court decided in

00:10:06 - And I don't, and there's, there has been no media blitz, there has been no campaigning to do this. I still think it's possible that the argument we're having about this role of electors could fuel this movement we talked about, which is for the National Compact of States to say, let's all agree to instruct our electors to vote for the winner

00:10:38 - And I do think it's a problem. It's, to me it is, one of the many ways in which we are straight jacketed into an 18th century model of distrust for the people that ha has no validity in contemporary politics and contemporary ethics. And yet we're, we're stuck with it, if that's the right term, because it's so, so hard

Electoral College vs. Popular Vote: A Dilemma for Democracy

00:11:09 - It's just it doesn't happen very often unlike other countries. And since we're stuck with it, something has to give, it's not gonna give in 2024. And let's hope that the, the results give us a popular vote in line with electoral college. Though if you follow the election at all, all the attention is on the seven swing states. Not the na it doesn't matter who's wins the national popular vote.

00:11:37 -

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