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.
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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.
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And furthermore, there is an almost complete absence of regulation governing the process.
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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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