ELECTORAL COLLEGE CHALLENGE

Discussing the tiebreaking procedures in the Electoral College – and being humbled and corrected on part of the process – has reminded me of my favorite point to bring up when discussing this ridiculous, inefficient system. And reading the next few paragraphs will provide you with the opportunity to invalidate a fact that I have posed to hundreds of people – students, political scientists, PhDs in other fields, lawyers, etc – without being refuted. Maybe you will be the one to do so.

The Electoral College is like a rotten onion; there are many layers, but no one cares to delve beyond the first one. First, you cast your ballot on November 4. Technically, of course, you are not voting for the name you see on the ballot. You vote for a group of electors who have been chosen by that candidate and his party. Next, each state certifies its popular vote and Electors must meet in their state capital and certify their vote by December 12. These steps are formalities in every non-2000 and non-Florida instance. Previously we talked about what happens if, after all EVs are certified, there is a tie. Let's consider another perspective.

We do not wait until December 12 to announce a winner – we know on election night or the next morning (again, excluding 2000). So in all but the most exceptional circumstances there can be as much as six weeks between voters selecting electors and electoral votes being certified (12/12 is a deadline, so certification may happen earlier in some states). In that six weeks, electors can change their minds. Some states (25 when last I checked) require electors to pledge to vote for their candidate, although the legality and enforceability of "pledging" laws is highly suspect (see Ray v Blair). But let's go ahead and pretend that these laws are all ironclad and those 25 states are off the table.

In the remaining 25 states the electors, even though they are thoroughly vetted and chosen by the parties for their partisan loyalty, can essentially choose whomever the hell they want. And furthermore, there is an almost complete absence of regulation governing the process. For instance. Let's say that in a state won by McCain but without pledging laws, George Soros contacts a Republican elector and says "I have a check for $1 billion, and it will have your name on it if you flip for Obama."

Here is your chance to attain fame: prove that this is illegal. Show me either a federal law precluding it nationwide or laws in each state without pledging requirements. I have not found any legislation suggesting that this can't be done. In case of a tie, it would simply become a test of wills to see which billionaire from which party could win the bidding for an entreprenurial elector.

I've been told that this is rather conspiratorial, but I'm waiting to be told that it's not possible.

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6 Responses to “ELECTORAL COLLEGE CHALLENGE”

  1. Dave Says:

    Hello,

    Electors are public officials, and bribery of public officials is a federal crime:

    http://uscode.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000201—-000-.html

  2. Ed Says:

    I'm not convinced, by that definition, that an elector counts as a public official. But you may be the prize winner.

  3. Scott Says:

    First, with the exception of the FEC, are there any federal laws regarding the election of president? It seems, from my layman's perspective, that the only thing that happens federally pertaining to the election is the counting of electoral votes from each state . If this is correct, there shouldn't be any federal laws outlawing the buying or selling of votes.

    Second, doing a brief, half-assed google search came up with two instances of people being charged with a crime for selling their votes online. Now the leap that has to made here is whether or not what the electors are doing on Dec. 12 is technically "voting." If it is, even if there isn't a law in every state, it seems to me that any prosecutor worth his or her salt would be able to convince a judge that buying an electoral vote is the same as buying a regular citizen's vote. That alone seems like it would preclude George Soros from attempting this.

    Third, can you provide a list of states that don't have pledged elector statutes. That would make finding state laws easier.

  4. Dave Says:

    Scott,

    The bribery law I link to above involves any official act, so at least that law isn't dependent on the definition of "voting." In my unschooled opinion, the business of the Electoral College seems to clearly fall under the definition of "official acts" in that law ("any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or in such official’s place of trust or profit").

    In response to your last question, here is a link:

    http://www.archives.gov/federal-register/electoral-college/laws.html

    It's not completely up to date; My state of Minnesota has since enacted a law that instantly replaces electors who don't vote the way the people voted. (Alternates are now chosen to fill in if this happens.) I also understand that Delaware has a faithless-elector law which is toothless.

  5. susan Says:

    There have been 22,000 electoral votes cast since presidential elections became competitive (in 1796), and only 10 have been cast for someone other than the candidate nominated by the elector's own political party. The electors are dedicated party activists who meet briefly in mid-December to cast their totally predictable votes in accordance with their pre-announced pledges.

  6. susan Says:

    The current system does not reliably reflect the nationwide popular vote. The statewide winner-take-all rules makes it possible for a candidate to win the Presidency without winning the most popular votes nationwide. This has occurred in one of every 14 presidential elections.

    In the past six decades, there have been six presidential elections in which a shift of a relatively small number of votes in one or two states would have elected (and, of course, in 2000, did elect) a presidential candidate who lost the popular vote nationwide.

    Nationwide popular election of the President is the only system that makes all states competitive, guarantees that the candidate with the most popular votes nationwide wins the Presidency, and makes every vote equal.

    The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

    Every vote would be politically relevant and equal in presidential elections.

    The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes—that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

    The National Popular Vote bill has passed 21 state legislative chambers, including one house in Arkansas, Colorado, Maine, North Carolina, and Washington, and both houses in California, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island, and Vermont. The bill has been enacted by Hawaii, Illinois, New Jersey, and Maryland. These four states possess 50 electoral votes — 19% of the 270 necessary to bring the law into effect.

    See http://www.NationalPopularVote.com