By Dick Roche*
Beware of US elections, which may end up with the world’s most powerful nation bogged down in a constitutional crisis, writes Dick Roche.
On 3 November US voters will elect Members of Congress, Governors, a raft of state and local office holders but they will not elect a new US President. The votes cast on 3 November will determine the makeup of the Electoral College.
On 14 December the electors of the College, meeting in their respective states will vote for the next US President and Vice President.
The Electoral College was created by the framers of the US Constitution as an alternative to electing the US President by a popular vote of the people or by Congress.
The framers of the US Constitution did not favour direct elections in part because of a concern about large states dominating small ones and in part because they were a patrician group with mixed feelings about democracy: left to their own devices voters could elect a demagogue.
James Madison, “the Father of the Constitution” referred to “the inconvenience of democracy”. Edmund Randolph who represented Virginia spoke of the need for “sufficient checks against democracy”. Another representative said that “the evils we experience flow from the excess of democracy”.
They also did not want Congress electing the President because it would interfere with the balance between the different branches of government. To resolve the conundrum a committee was appointed. It produced the idea of an Electoral College to deliberate on the winner of the popular vote but not necessarily to rubber-stamp the voters’ choice.
Today’s Electoral College consists of 538 electors. To be elected President a candidate must receive at least 270 College votes. If no candidate receives an absolute majority or if there is a deadlock in the College a contingent election for president is held in the House of Representatives where each state delegation has one vote. A similar election for Vice President is held in the Senate.
Each state is allocated electoral votes based on the number of Representatives and Senators the state sends to Congress. After election day the state delegations on the Electoral College are, with two exceptions, allocated to the political parties on a winner take all basis.
If Joe Biden wins California in November the state’s 55 Electoral College places are allocated to the Democrats. If Donald Trump holds Texas its 38 places in the College go to the Republicans. Maine and Nebraska allocate two College positions to the party, which takes the most votes on 3 November and one position to the party winning in each congressional district.
The political parties decide on the electors who take up their seats in the College. Electors pledge to vote for their party’s candidate for President and Vice President. Electors can go rogue becoming ‘faithless electors’ and cast a ‘deviant’ vote for any person they wish. Bizarrely, there are no Constitutional or federal provisions dealing with faithless electors.
Between 1900 and 2012 there were only nine deviant votes cast by faithless electors. In the 2016 contest between Hilary Clinton and Donald Trump seven members of the Electoral College cast deviant votes. Three other potential deviant votes were invalidated.
Four Democrat electors from Washington state failed to vote for Hilary Clinton won the popular vote by 52.5% to 36.8%.
Three voted for Colin Powell and the fourth voted for Faith Spotted Eagle, a Sioux elder and environmental campaigner. The four were subsequently each fined $1,000, which they appealed. In July the US Supreme Court upheld Washington’s right to impose fines.
Hillary Clinton also lost an elector from Hawaii who voted for Bernie Sanders. Over 62% of Hawaii’s voters supported Clinton.
Two of the Republican electors from Texas also broke ranks. One of the two, Christopher Suprun, explained in the New York Times that he would not vote as pledged because he felt that Donald Trump was “not qualified for the office” citing Trump’s tweets, his lack of foreign policy experience, demeanour, his advisors – Steve Bannon and General Michael Flynn were name-checked – and concerns that Trump “does not understand” that the Constitution forbids a president receiving gifts or payments from foreign governments.
The outcome of the Electoral College vote in December 2016 gave Donald Trump 304 votes to Hilary Clinton’s 227. The result was the fifth time in US history that a presidential candidate won the White House while losing the popular vote.
There have been numerous unsuccessful attempts to get rid of the Electoral College over the years. In the absence of reform at the federal level, 33 states plus Washington DC have enacted legislation relating to the Electoral College.
As with so much else in US elections the provisions in the legislation varies significantly from state to state. Remarkably only five of the states impose a penalty on faithless electors. California law contains the harshest penalties, a fine of up to $1,000 and /or imprisonment.
Fourteen states – accounting for less than 23% of the total College vote – have provisions that allow for the cancellation of a deviant vote and replacement of the faithless elector. Oddly the legislation in nineteen states and Washington DC allows the deviant votes to be counted as cast. The remaining states have no legislation to deal with faithless voters.
Going into the Electoral College vote in 2016 a major campaign was launched to persuade Republican electors to vote against Trump. A petition requesting the Electoral College to elect Hilary Clinton received almost 5 million signatures.
Republican electors were offered pro bono legal aid and a secure communications channel to assist them to break their voting pledges. Full-page advertisements were run in newspapers.
Hollywood personalities made a video appealing to Republican electors to vote for anyone but Trump allowing the House of Representatives the right to decide who should be President. Anti-Trump rallies were mounted in a number of states to coincide with the Electoral College vote.
Nancy Pelosi’s daughter, a Democrat elector from California, demanded an intelligence briefing on Russian interference in the election ahead of the Electoral College meeting on 19 December.
When the votes cast on 3 November are tallied if Trump emerges ahead of Biden in terms of votes in the College it is highly likely that a similar campaign will be mounted to get Republican electors to switch from Trump.
In a close-run election, only a handful of faithless electors could deny Trump the 270 votes needed to become president – the same number Hillary Clinton lost to faithless electors.
A coup amongst Republican voters is not the only way in which the College could feature in a showdown in November. Delays in the certification of election results because of disputes about in-mail votes could also trigger chaos.
Results must be lodged by 8 December, six days before the Electoral College votes. The lack of clear-cut results in swing states such as Michigan, North Carolina, Pennsylvania and Wisconsin, where state legislatures are Republican, and the Governors are Democrats could produce a situation where Republican electors backing Trump are certified by state legislatures while the Governor certifies the Democrat slate resulting in a full-blown constitutional crisis.
The US Electoral College has been described as “a time bomb lodged near the heart of the nation.” This year the time bomb could explode plunging the US into a major constitutional crisis. We could be hearing a lot more about the anachronistic US Electoral College before the year is out.
*Dick Roche is a former European Affairs minister of Ireland.