Volume 18 , Issue 44

NW Okie's Journey

Every four years, the cry goes up to destroy the Electoral College. That cry is especially loud in years when a candidate is elected president who receives a minority of the votes. The election of a “minority president” happened with the election of 2000, but it had happened before.

The Electoral College has elected three presidents whom a majority of the voters voted against: Rutherford B. Hayes in 1876, Benjamin Harrison in 1888, and George W. Bush in 2000. (A fourth president was also elected with a minority of the popular vote—John Quincy Adams in 1824—though that election was by the House of Representatives, the Electoral College not having produced a majority of electors.)

We The People must now urge our electors to exercise the "faithless elector" option. Our electors must now speak for us. It is their duty to prevent a man "who is not in an eminent degree endowed with the requisite qualifications" from taking the office of President of the United States.

A "faithless elector" is a member of the US Electoral College who does not vote for the presidential or vice-presidential candidate for whom they had pledged to vote. In other words, they lack faith in the pledge and vote for another candidate, or fail to vote, or choose not to vote. A pledged elector can become a faithless elector only by breaking their pledge; unplugged electors hove no pledge to break.

Electors are typically chosen and nominated by a political party or the party's presidential nominee. They are usually party members with a reputation for high loyalty to the party and its chosen candidate. A faithless elector runs the risk of party censure and political retaliation from their party, as well as potential legal penalties in some states. Candidates for elector are nominated by state political parties in the months prior to Election Day.

Some states electors are nominated in primaries. In other states (Oklahoma, Virginia & North Carolina) electors are nominated in party conventions. Pennsylvania's campaign committee of each candidate names their candidates for elector. This is an attempt to discourage faithless electors.

It was during the 1836 election, Virginia's entire 23-man electoral delegation faithlessly abstained from voting for victorious vice presidential nominee Richard M. Johnson due to Johnson's openly admitted to publicized, long-term interracial relationship with his slave Julia Chin. Virginia's electors voted for presidential nominee Martin Van Buren as pledged, meaning the presidential election was not in dispute.

The Electoral College mechanism and the peculiar phenomenon of faithless electors provided for within it, was, in part, deliberately created as a safety measure not only to prevent a scenario of tyranny of the majority, but also to prevent the use of democracy to overthrow democracy for authoritarianism, dictatorship, kleptocracy, or other system of oppressive government.

There are 22 states who do not have laws compelling their electors to vote for a pledged candidate. 29 states plus the District of Columbia have laws to penalize faithless electors, although these have never been enforced. In lieu of penalizing faithless elector, some states (Michigan & Minnesota) specify the faithless elector's vote is void, though no state has yet had cause to enforce such a provision.

The constitutionality of state pledge laws was confirmed by the Supreme Court in 1952 in Ray v. Blair[8] in a 5–2 vote. The court ruled states have the right to require electors to pledge to vote for the candidate whom their party supports, and the right to remove potential electors who refuse to pledge prior to the election.

The ruling only held that requiring a pledge, not a vote, was constitutional and Justice Jackson wrote in his dissent, "no one faithful to our history can deny that the plan originally contemplated what is implicit in its text – that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices."

More recent legal scholars believe "a state law that would thwart a federal elector’s discretion at an extraordinary time when it reasonably must be exercised would clearly violate Article II and the Twelfth Amendment."

The Supreme Court has never ruled on the constitutionality of state laws punishing electors for actually casting a faithless vote.

Alexander Hamilton Writes to Jefferson
American founding father Alexander Hamilton writing to Jefferson from the Constitutional Convention argued of the fear regarding the use of pure direct democracy by the majority to elect a demagogue who, rather than work for the benefit of all citizens, set out to either harm those in the minority or work only for those of the upper echelon. As articulated by Hamilton, one reason the Electoral College was created was so "that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications."

Furthermore, The People have spoken; Hillary Clinton has won the popular vote. Trump did not! Our electors must look to their conscious and vote for a person who is endowed with the requisite qualifications, and has won the popular vote of the people.

I'm still with her! "Buckle-up, Buttercup!"
Good Night! Good Luck!
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