With the Electoral College set to meet next week, millions of Americans horrified by the prospect of a Donald J. Trump presidency have implored red-state electors to vote for Hillary Clinton or an establishment Republican. Millions of Americans supportive of Mr. Trump find these efforts galling. But both sides agree on what to call such electors: “faithless.”
This is a loaded label. Is it warranted? Do presidential electors have an obligation to ratify their state’s popular vote?
As a matter of state law, the answer is mixed. Just over half of the states have enacted measures that instruct electors to vote for their party’s designated candidate. The rest have not. And even in the states that tell their electors how to vote, the penalties for disobeying tend to be modest and to go unenforced.
As a matter of federal constitutional law, there is little basis for thinking that electors must side with their party’s candidate when that candidate carries the state. The Constitution says only that they “shall meet in their respective states and vote by ballot.” Some evidence suggests that the framers envisioned the independent judgment of electors as a check against populist passions. Alexander Hamilton, for instance, wrote that the Electoral College would allow the presidency to be decided “by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation.”
The primary purpose of the Electoral College, however, was nothing so high-minded. It was to facilitate political compromise and shore up the power of slaveholding states by allowing them to count three-fifths of their slaves toward their allotment of votes. That sorry history does not clarify or constrain how a member of the college should behave today.
The charge that electors who vote their conscience are faithless, then, is not well grounded in authoritative legal sources. If anything, the law points toward a flexible understanding of the elector’s role. The charge of faithlessness is rooted, instead, in custom and promise. Pledged electors have rarely used their discretion, and never in a way that altered the outcome of a presidential race. Knowing this, Americans go to the polls assuming their electors will vote for the candidate who wins their state. Any other choice may seem a breach of the people’s trust.
This tradition is compelling in ordinary times, but these are extraordinary ones. Mrs. Clinton received substantially more votes than Mr. Trump, and allegations of voter intimidation and suppression have clouded his victories in key states. Still more disconcerting, many of Mr. Trump’s critics believe he is not just an embodiment of the unqualified trickster with “talents for low intrigue, and the little arts of popularity” feared by Hamilton; they believe he is a one-man constitutional crisis who empowers white nationalists, conflates his business interests with the public good and displays contempt for the rule of law. They fear he could use existing institutions to destroy our liberal democracy, just as autocrats have done abroad.
In light of these allegations, the practice of sticking with the state’s top vote-getter loses moral force. It cannot override a more basic obligation to preserve the country and the Constitution.
Those who have been calling for electors to be “faithless” have thus ceded too much linguistic ground. Indeed, their terminology has things backward. If a member of the Electoral College sincerely believes that Mr. Trump is as awful as alleged, then for her to take a stand against him — with the eyes of the nation upon her and at significant personal risk — would be an act of profound constitutional fidelity. Thanks to the Republican elector Christopher Suprun of Texas, we have now seen what such fidelity looks like.
The fact that an elector can vote her conscience does not necessarily mean she should. The proper course of action depends not only on what Mr. Trump might be like in the White House, but also on what the effects of an Electoral College revolt would be. Mr. Trump’s critics may be overstating or misreading the danger he poses. The effort to thwart his presidency may be so unlikely to succeed, or so likely to cause destructive political alienation and social unrest, that the game is not worth the candle. A failed attempt might only feed Mr. Trump’s paranoia and aggravate his illiberal tendencies.
These are all issues wavering electors have to consider. But wherever it leads, the campaign to turn them away from Mr. Trump ought to unite his supporters and detractors on one issue: the folly of the Electoral College. If this campaign reveals that electors by and large feel compelled to behave like “party lackeys and intellectual nonentities,” as Justice Robert Jackson once put it, then the college serves no redeeming function. If, on the other hand, electors begin to feel increasingly emboldened to disregard their state vote, then we have a recipe for partisan mischief and structural instability that should scare all Americans in the years ahead.
Either way, the renewed public interest in the Electoral College underscores the need to do away with this antiquated and fundamentally undemocratic institution.