In Utah, it's illegal to vote for independents Evan McMullin and Mindy Finn

Independent presidential candidate Evan McMullin and running mate Mindy Finn have a message that resonates with Utah voters. Recent polls show them in close contention and perhaps winning Utah’s six electoral votes.

There’s just one problem. Under current Utah law, it’s illegal to vote for these two.

This November, when we vote for president and vice president, we are not voting for two candidates. Instead, we’re voting for a slate of presidential electors who support those candidates. The electors meet in late December in an assembly known as the Electoral College. The electors actually vote for the president and vice president.

Many states today have laws requiring presidential electors to pledge to support the candidates named on the ballot. But a few, including Utah, have gone one step farther. It’s actually illegal in Utah for an elector to vote for anyone except the candidates they pledged to support.

When Mr. McMullin began his independent presidential campaign in early August, Ms. Finn was not his running mate. In fact, he only announced her as his vice-presidential nominee in early October.

To secure a spot on the ballot in Utah, Mr. McMullin needed to circulate petitions and gather signatures shortly after announcing his candidacy. He didn’t have a running mate at the time, so he circulated petitions with a stand-in, the name “Nathan Johnson” on them. (Many minor party candidates suffer the same problems.)

Under Utah law, electors are legally bound to vote for the names printed on the ballot, McMullin-Johnson. It would be illegal for them to vote for McMullin-Finn, the actual ticket. (Indeed, similar problems would if Hillary Clinton or Donald Trump withdrew from the race.)

In most other states, electors could make an adjustment. They could vote for McMullin-Finn, or a new ticket if a candidate stepped down. But not in Utah.

Utah offers electors two narrow situations in which electors are not bound to their pledge—if the candidate dies or is convicted of a felony. Otherwise, Utah law forces electors to vote for their pledged candidate. If they fail to do so, they forfeit their office, and the remaining electors choose a replacement. (The law is unclear if everyone breaks the law.)

It’s not clear under Supreme Court precedent that Utah has the power to outlaw the independent judgment of electors. The Constitution instructs electors to vote by ballot, suggesting an element of secrecy and deliberation, as David Rivkin and Andrew Grossman have so eloquently argued.

The Utah legislature should repeal this law, which is probably unconstitutional anyway, and trust presidential electors to vote for the right candidate in December.

Or the Attorney General should advise the public about the enforceability of the law before Election Day so voters know whether their votes for these six electors will result in some nullification.

Perhaps the Attorney General should even seek a declaration in federal court in the event there's an open questions.

Utah officials should act quickly, before Election Day, to avoid any uncertainty. But presidential electors must have the discretion to respond to circumstances like those playing out in Utah.

In today's WSJ: "Libertarians and Greens Can Win--Even If They Lose"

In today's Wall Street Journal, I have an opinion piece entitled, "Libertarians and Greens Can Win--Even If They Lose." It begins:

Gary Johnson and Jill Stein have a difficult task—though this election year it might be easier than most. The trick for third parties in American politics is convincing voters that they aren’t “wasting” ballots by supporting the Libertarian or Green Party candidate, since neither will make it to the White House.

But the unpopularity of Donald Trump and Hillary Clinton has provided the Libertarians and Greens with a new argument: Political parties that meet defined benchmarks on Election Day are given certain advantages under state and federal law. If Mr. Johnson and Ms. Stein manage to secure 5% of the popular vote—plausible given current polling—their parties will reap significant benefits.

Commentary: "What Would Happen in the Electoral College if Trump Dropped Out?"

This week I have a piece up at National Review entitled, "What Would Happen in the Electoral College if Trump Dropped Out?" It begins:

There have been renewed calls for Donald Trump to end his candidacy for president. Perhaps the GOP would elevate Mike Pence to the top of the ticket, or select someone such as Mitt Romney. And it’s not too late — the Republican party can do so at this late date because the Electoral College, not the voters, ultimately selects the president.

While practical barriers limit options to replace Donald Trump, one fairly easy solution remains

As I've watched many inquiries open over the last couple of days about the feasibility of replacing Donald Trump as the Republican presidential candidate at this late date, it's worth discussing important distinctions between what can and what cannot be done at this date; and if things can be done, why, as a practical matter, they will not work. There is really only on option available--Donald Trump dropping out, naming a new candidate, communicating that to voters, and relying on the Electoral College.

It is too late for Donald Trump's name to be taken off the printed ballot. This should be obvious. We're in a period of early voting, absentee voting, voting overseas, and simply the act of printing ballots.

It is practically too late to replace Mr. Trump without his consent. While there are some rather fantastic hypotheticals ranging from the Republican National Committee replacing him under Rule 9 to instructing presidential electors to vote for someone else, this is, as a practical matter, impossible.

For starters, the notion of the RNC replacing him was driven by hopes to change the words printed on the ballot months ago. If he's on the ballot, running as the candidate, then the RNC's 11th hour decision to replace him would go nowhere. A second rogue candidate roaming the country as Trump insists he's still the nominee, still printed on the ballot? Quite a challenge.

Additionally, even if the RNC convinced the public that a new nominee was the real nominee, and perhaps hoped the Electoral College would solve the problem, it's too late as a practical matter on that front, too. For starters, Trump would be demanding electors vote for him, too, causing deep confusing in the public and a high unlikelihood that the hybrid form of the Republican ticket secured 270 electoral votes.

Also, electors were selected months ago. I floated the notion back then of the "Trojan Electoral College," where state parties are usually in charge of selecting electors. If these parties unified to select electors committed to a Romney-Pence or Pence-Kasich ticket, they could have done so with some ease (subject to a few likely-unconstitutional laws that purport to legally bind presidential electors to the nominee).

But that ship has sailed. It's like pulling teeth to secure the lists of presidential electors in some places. In Illinois, it includes a few loyal to Ted Cruz, Marco Rubio, and John Kasich. In that state, however, it's unlikely to matter, of course. But Mr. Trump has had a significant imprint on the slates of electors elsewhere. Consider Ohio, where one such elector is Kathy Miller, who was heading up Mr. Trump's efforts in a part of the state (at least, until a recent gaffe involving racially-charged remarks forced her resignation).

Even if one could convince the public that casting votes for Mr. Trump on the ballot would leave the decision to the Electoral College, these electors include some who are fiercely loyal to Mr. Trump. In the event he does not drop out, they are unlikely to vote for anyone else but Mr. Trump.

(UPDATE: As a point of clarification, it would be legally and constitutionally permissible for Republicans to pursue this route, as Professor Ned Foley has thoughtfully explained. I simply believe it's deeply impractical and work from that assumption.)

It is not too late for Mr. Trump to drop out, for the party to name a new slate, for voters to understand that, and for the Electoral College to vote for a new slate. Because of all these problems, the first, and biggest, step is for Mr. Trump to drop out. After that, everything else falls fairly naturally into place.

First, the RNC could easily (and fairly informally) name a new ticket, of "Romney-Pence" or "Pence-Kasich" or whatever it may be. Yes, the ballots would still read "Trump-Pence," but, like, say, Mel Carnahan 2000, voters would know (quite quickly!) that these words are simply hieroglyphics that mean an entirely different ticket.

Assuming that works for Republicans and it appears they've secured enough electoral votes after November 8, the Electoral College meets December 19 and votes. While many states require electors to pledge to support candidates, only a few purport to make those pledges binding. And they're probably unconstitutional. Electors could gather and vote for the new ticket with little difficulty. In the few states with binding laws, I imagine state attorneys general or secretaries of state would not attempt to enforce such laws--but there's certainly a litigation risk. But consider that it would be an attempt to force electors to vote for a man who'd already dropped out of the race! Curious result indeed.

There are further complications that could arise, but this scenario would be a fairly straightforward and easy to do. It's triggered by a voluntary decision by Mr. Trump, of course, which is the biggest problem. But when many call upon Mr. Trump to drop out, it's worth noting that this is the scenario that would unfold if he did.

The Electoral College in 2016: How the House may choose a president

This is the fourth post in a series. The first one is here. The second, here. The third, here.

There are many scenarios that could yield bizarre outcomes in our presidential election--largely turning on facets of the Electoral College. While Hillary Clinton's lead has grown steadily in recent days, FiveThirtyEight keeps track of some of these scenarios, including the not-so-implausible likelihood of an electoral vote tie, 269 for Donald Trump and 269 for Mrs. Clinton.

(It's worth noting that this possible two-party tie is a direct result of the Twenty-Third Amendment, which assured the District of Columbia a number of presidential electors equal to the fewest number of electors given to a state--now, three. The Senate always has an even number of Senators, because each state receives two, and the Vice President votes in case of a tie. The House of Representatives is designed to have an odd number of Representatives to avoid ties. An odd number plus an even number equals an odd number--right now, 100+435=535. But adding the odd number of three electors to this odd number means there will be an even number of presidential electors.)

The pressures and alliances may grow bizarre in a close election.  Suppose Mr. Trump secured 270 electoral votes and Mrs. Clinton 268. A single faithless Trump elector could cast a vote for Mrs. Clinton, tie the election at 269, and send the race to the House. (Two such faithless electors could swing the election to Mrs. Clinton.) Or a single faithless Trump elector could cast a vote for Paul Ryan, leaving the vote totals among Mr. Trump (269 votes), Mrs. Clinton (268 votes), and Mr. Ryan (1 vote).

Another poll showed Libertarian candidate Gary Johnson within striking distance of the lead in New Mexico, leading a possibility that Mrs. Clinton wins 267 votes, Mr. Trump 266, and Mr. Johnson 5.

In the event that no candidate secures a majority of the electoral votes when the Electoral College gathers on December 19, it is left to the new Congress, and the newly-seated House, to choose the next president. Each state receives a single vote. Yes, Wyoming gets the same vote as California, and Rhode Island gets the same vote as Texas, just the way the states voted in Congress under the Articles of Confederation.

In the single-vote-Paul Ryan scenario, it would be within the House's power to vote for Mr. Ryan, hearkening back to 1824 as a time when the person who failed to secure the most electoral votes still won the presidency. Or to vote for Mr. Johnson in the New Mexico scenario. The House has the opportunity to consider the top three electoral vote-getters--surely adding pressure for a faithless elector in a 269-269 scenario to defect toward a third candidate and give the House an additional option. (It's worth noting that the Constitution provides no assistance in the event of a tie for the third-place vote-getters, meaning that perhaps more than three candidates would be options for the House.)

There is little doubt, I think, that the House, which has a fair majority of Republican-controlled delegations, would select Mr. Trump. As tempted as they might be choose their own Speaker, Mr. Ryan, the cries of illegitimacy would be strong. And if the "establishment" Republicans failed to stop Mr. Trump at the national convention--the most logical place to prevent his candidacy from moving forward--surely it would fail to do so here, too.

The Framers expected that the House would regularly have the opportunity to choose among the top vote-getters as they doubted that candidates would regularly secure a majority of the electoral votes. But the quick rise of our two-party political system changed that calculus--most (often, essentially all) electoral votes went toward one of two candidates, which dramatically increased the likelihood of a winner without a role for the House.

In the event the House does decide a presidential election, reform efforts are quite likely to follow. An expectation of popular involvement in our election, not of the House, would drive that. But, much like the role of electors, the role of the House remained a part of the Twelfth Amendment and our first reforms of the Electoral College--even though the House cast 36 ballots in 1800 before choosing Thomas Jefferson as our third president.

In the unlikeliest of scenarios, the Senate chooses between the top two vote-getters for the next vice president, and lingering uncertainty in the House might make this person the Acting President as the House sorts out its election. And it creates the possibility of creative or unusual presidencies, like Johnson-Kaine or Ryan-Kaine.

And while the House or Senate choosing the next president is not an optimal outcome (at least, if you're among those who yearns for popular elections and increasingly direct democracy), consider what should happen if no candidate secures a majority. A run-off, a second election? Or reform for some kind of ranked choice or instant run-off voting? Or simply permit a candidate with a plurality to win an election? For while the House choosing the next president seems problematic, serious thought must go into deciding what system ought to replace it--and, perhaps, presents its own challenges.

The Electoral College in 2016: The curious role of presidential electors

This is the third post in a series. The first one is here. The second, here.

It's easy to remember the 2016 presidential primaries, particularly the Republican National Convention--dramatic conventions with delegates pledged to support certain candidates, a lawsuit enjoining a state law from forcing delegates to vote for their pledged candidate in Virginia, procedural wrangling and voting on the floor, and the like. The Democratic National Convention was less climactic, but many battles over the roles of delegates and superdelegates lingered over the months ahead of the convention.

Many of these battles turned on a fundamental question about what delegates are supposed to do. That is, when voters in a state selected delegates, did they expect them to serve as something like brainless robots, simply reflecting their public pledges to support a candidate? Or did they expect them to think independently, despite their pledge, and perhaps modify their positions based on new information as they deliberated prior to the convention?

It might be the case that settled expectations suggest that delegates ought to be bound to their pledge, at least for the first round of voting. Or it might be the case that we elected human beings as delegates for a reason--to exercise their judgment, even if that means breaking their pledge.

This debate is the same kind of debate surrounding the Electoral College. We select 538 presidential electors, and they meet on December 19 this year in state capitals around the country to vote for the next president and vice president. They rarely exercise independent judgment anymore--indeed, they have rarely done so since 1796. But some still suggest they ought to do so, particularly this year. Why compel electors to vote for a candidate when new information might change their mind? Much can happen between November 8 and December 19. Allow electors the opportunity to decide for themselves.

This, of course, is exceedingly unlikely for a host of reasons. The electors are often selected as party, and even candidate, loyalists. The public suggestion that an elector might vote for someone other than the pledge candidate is enough to force resignation. Most states require electors to take a pledge; a few purport to make that pledge enforceable.

Perhaps that ought to be the case--we have settled expectations, I suppose, that electors should not exercise independent judgment. But, at the same time, we would expect those electors to exercise independent judgment, I think, if the candidate died, or was indicted on a felony, or perhaps exercised some other egregious lack of judgment--no? And if so, is it only limited to egregious circumstances?

It's worth noting that for all the flaws of the Electoral College, the 12th Amendment addressed a few things--reacting to presidential-vice presidential tickets, political parties, and the like. But it didn't remove the judgment reserved to electors. It could have done so--even the 20th Amendment could have done so. This residual authority has long remained with us.

And in most cases, such independent judgment is academic--a D.C. elector in 2000, for instance, refused to vote for Al Gore to protest the lack of congressional representation for the District of Columbia. But it didn't affect the outcome, and perhaps we simply ignore the issue.

But in close elections, there are greater "risks" associated with "faithless" electors--"risks" meaning an increased likelihood that the outcome of the election changes from our expectations on November 9, and "faithless" meaning electors voting for a candidate other than the candidate they are pledged to support. Consider a survey of electors after 2000, which found nearly 10% of electors open to voting for someone other than their pledged candidate. Consider that just two Bush electors voting for someone else would have thrown the election to the House, the "risks" can be quite high.

One can imagine similar pressures, perhaps even greater, in this year's election. Given the history unpopularity of both Donald Trump and Hillary Clinton--for altogether different reasons--a close election might yield unusual pressure on electors to either switch their votes for the other candidate, or to throw their votes to a third candidate.

In the event no one candidate secured 270 electoral votes, the top three vote-getters will be sent to the House of Representatives in what is known as a "contingent election." (The Senate votes among the top two vice presidential candidates.) The House votes not as 435 members, but as 50 states, each state receiving one vote, similar to the Congress under the Article of Confederation. Wyoming, then, has the same voting power as California. Republicans control most of the state delegations and would likely control the choice if they voted as a unit.

Is that a better system? One of electors exercising their own judgment and sending the presidential election to the House? Perhaps discussing the role of the House is a better left for another post. But it's worth noting that in a close election, a couple of stray electors could flip the election to the "losing" candidate ("losing," at least, based on our expectation on November 9).  Or, the judgment of electors might send elections to the House.

It might be that we are so far beyond the notion of electors exercising independent judgment that we simply could not (as a society) accept the result as "legitimate." But it's worth emphasizing that electors have this power, that they have exercised this power, and that there are some good theories of government that might view it as admirable that they have and exercise this power--look no further than the debates that played out in the 2016 presidential primaries. Until we replace electors with robots, we should expect nothing less.

The Electoral College in 2016: How state legislatures choose the process of selecting electors

This is the second post in a series. The first is here.

The Electoral College, for whatever faults one may identify, might have some value in ensuring a true majority winner, that the winner has a broad base of national support, and that the winner is representative of the greater population rather than simply the total sum of voters. (One could, of course, contest these points, particularly as some of them are post hoc from the Founding!)

But what about the outsized role that states like Ohio, Florida, and Virginia play in our presidential elections? Surely we should do something about that?

The state legislatures have essentially plenary power over the decision of how to choose electors. They could choose electors themselves, which many did for a long time, and which they could do today. But we expect to participate directly in that process today. States could choose to award presidential electors proportionately, or they could award them by congressional district, as Maine and Nebraska do.

But 48 states and the District of Columbia all award their electors on a winner-take-all basis: whichever candidate wins the most votes in the state wins all of the electoral votes. It's a major reason some elections, like 1984, turn into landslides.

States have understandably moved in this direction. What good is it, states reasoned, if we have, say, 19 electoral votes, and we award the proportionately? Candidates might campaign here to shift from 9 to 10 electoral votes. But in a winner-take-all system, states can leverage their power greatly, and campaigning might shift the electoral slate from 0 to 19 votes. That power is beneficial to the states, particularly larger ones.

What about states like Texas or California, which see very little from contemporary presidential campaigns (except for fundraising!)? These states also have little incentive to change their rules toward proportional or some other way of awarding electors--after all, why would the reliably Republican Texas or the reliably Democratic California choose to cede some power away from their preferred candidate, even if they're mostly ignored in the process?

But suppose one could persuade a legislature to change the rules to something else, one that gives more voters in the state greater input into the process rather than simply a winner-take-all process. Indeed, our presidential primaries often award delegates by congressional district (sometimes, perhaps, quite unfairly), or proportionately. Why not do the same?

If the legislature won't do it, perhaps it could be done via initiative. Colorado sought to do by ballot initiative, and an idea was floated in California to do the same. (Assuming, of course, that the power could be exercised via initiative rather than through the legislature alone.) But even such decisions are often decried as "rigging" the Electoral College. Changing California's awarding of electors unilaterally, for instance, at least in light of recent elections, would move the state from a Democratic+55 vote advantage to something closer to a Democratic+15 electoral vote advantage--a massive loss for the majority voters in the state, and the state legislature, which might prefer maximizing the state's leverage for a preferred candidate over more equitable representation. Until voters or legislatures "get over" the fact that proportional allocation is more representative of the interests of the state as a whole, and is preferred as a value over leveraging the most out of your state, such options are unlikely to garner much support. (And states must do so unilaterally--they cannot enter compacts with one another absent congressional consent.)

Further, some might conclude that this would be more trouble than it's worth. For instance, such a system in California might yield a few stray votes for Libertarian Party nominee Gary Johnson and Green Party nominee Jill Stein this November. It would surely empower those minor party supporters. But if played out in California, and perhaps in other states, it would assuredly deprive any candidate of receiving a majority of the Electoral College. (Indeed, it surely would have done so in 1992 with Ross Perot, who didn't receive a single electoral vote but would have earned well over a hundred in a national proportional system.) And sending elections to the House might have its own problems, and a later post will describe.

But states do proportional allocation of delegates in presidential primaries without great complications. They do so, of course, often with a minimal showing of support required to be eligible to receive any delegates, such as requiring a 10% or 15% showing at the polls. Such a system--assuming other objections could be overcome!--would mostly cure the majority vote failure problem for minor party spoilers (except in a case like Perot, who was hardly a "minor" party spoiler!).

States like Maine and Nebraska do award electors on the basis of congressional districts--two to the statewide winner, and one in each congressional district. This decision, however, might further polarize the already-unpopular act of political gerrymandering, turning congressional districts into something even still more significant than electing members of Congress alone.

Perhaps proportional representation would better reflect the interests of the state, assuming the political pressure could be overcome. Until then, however, states face the results of their own decisionmaking--ceding great power in the campaign process to the few states with deeply fickle and divided electorates.

For more, consider The Compact Clause and the National Popular Vote, 6 Election L.J. 372 (2007), and Invisible Federalism and the Electoral College, 44 Ariz. St. L.J. 1237 (2012).

The Electoral College in 2016: It still does a few things well

This is the first post in a series.

Our presidential election really doesn't happen on November 8 when more than a hundred million Americans visit the polls. It happens on December 19, in state capitols around the country, by just 538 select individuals, who gather in a meeting of the Electoral College.

The Electoral College does not function like the Framers anticipated. Indeed, it functioned so poorly from the very beginning that the Constitution was promptly amended to cure its failings. So why have an Electoral College at all? There are, perhaps, two good reasons for an Electoral College today: practical and theoretical.

The first is practical. Instead of holding a national popular election for president, we hold fifty-one separate contests in the fifty states and the District of Columbia. They set up different times for the polls to be open, different registration and early voting times, and different eligibility rules for ex-felons and for the mentally ill. They have different ballot rules--some permit "fusion" candidates to list multiple party names beside a candidate's name, and some make it easier for candidates to appear on the ballot at all.

Each state looks a little different in running elections. So it makes sense that the United States doesn't just hold a single national election for president. Or, at least, it emphatically made sense at the founding. Even if the Framers had widely accepted direct election of the executive (which they hadn't, citing, among other things, a concern of an "excess of democracy"!), the logistics of creating a uniform national election on top of our federalist system would have been deeply complicated--particularly defining who would be eligible to vote in such elections. The form of the Electoral College permits these elections to occur on a state-by-state basis, then aggregate the results neatly after the fact.

On top of that, the current system ensures a true majority winner. A candidate needs 270 electoral votes, an actual majority instead of a plurality or the most among all vote-getters. There's an increased sense of legitimacy from a majority winner. Absent an runoff among the top two vote-getters or a form of instant run-off voting, the winner could receive just a plurality of the vote--indeed, in some presidential elections, the winner receives less than 45% of the popular vote. This is not fatal in other elections--many states permit governors or mayors to win with a plurality for instance--but it does remain a concern. It also permits relatively small popular vote victories to translate into very wide electoral vote margins, perhaps adding to the legitimacy of the winner--Reagan defeated Carter by just 9 points in 1980, but he won 489 electoral votes. Obama defeated McCain by 7 points, but he held a nearly 200 electoral vote margin of victory.

The second is theoretical. You're likely aware that the Electoral College gives an advantage to smaller states--each state receives a total number of presidential electors equal to the number of Senators and Representatives in that state. Because each state receives two Senators, and at least one Representative regardless of its size, each state receives three electors. That certainly redounds to the benefit of smaller states. But it's worth noting that at the present, that advantage does not particularly advantage on political party over another--the smallest states are fairly evenly divided in their political preferences at the moment.

But the Electoral College also does something else--it allocates electors in part based on the House of Representatives, which is apportioned based on the total population in each state. It is not apportioned based on the total number of voters in each state. That means that states with a significant non-voting population--such as a significant number of children or non-citizens--gain an advantage. Yes, states like California and Texas have less raw power than the smallest states in the Electoral College. But they also are given a bit more weight than states like Ohio and Pennsylvania because of their significant populations of children and non-citizens. States in the South and the West tend to have greater representation in the House and, in turn, the Electoral College because of these growing non-voting populations.

It might be that we expect the person with the most votes to win elections. But it might also be the case that we think that raw voter turnout shouldn't be the sole measure of political power; perhaps the allocation of the House helps indicate why some states get a little boost in representation, something that carries over to the Electoral College.

I admit, conceding these problems does not necessarily mean one must whole-heartedly embrace the Electoral College. Indeed, one could reject the theoretical claim and find that we simply need better logistical solutions, perhaps a constitutional amendment, for the practical claim. And these few things it does well might still be outweighed, at least to some, by other things, such as the intervening element of "electors" who cast votes, or the possibility that elections might be sent to the House. Some of these matters, I think, may best be left for another post.

For more, consider Invisible Federalism and the Electoral College, 44 Ariz. St. L.J. 1237 (2012).