New effort (doomed to fail) calls for presidential electors to collectively exercise independent judgment

Presidential electors will meet in state capitals around the country on December 19. They’ll vote for the next president and vice-president. We assume most of them will vote for Donald Trump and Mike Pence. But a group of anti-Trump electors, mostly Democrats, have sought to form an alliance around a consensus candidate who is neither Trump nor Hillary Clinton. They remind us that electors are supposed to exercise “independent judgment.” They hope to collectively exercise independent judgment--something of an oxymoron.

But the Framers expressly designed the Electoral College to thwart such schemes. They’ve repeatedly failed in the past, and they’re all but doomed to fail this year.

The Constitution's design

During the federal convention of 1787, the Framers worried that selection of the president would be the subject of political “intrigue” or fall into the hands of a “cabal” of decision-makers. Alexander Hamilton explained in Federalist 68 that the Electoral College would avoid such “mischief.” If electors assembled in a single place, Hamilton noted, it would invite “heats and ferments,” “cabal, intrigue and corruption,” and a selection process gone wrong.

Instead, electors from each state would assemble in that state, separated from the electors of all the other states. They would meet on the same day across these states, “detached and divided” from another. Hamilton emphasized that that could not engage in any “combinations” that would affect their independent judgment. Electors would vote for a president and a vice president based upon the deliberations in their own states, not from any agreement among electors.

Early attempts for electors to conspire with one another across the states failed badly. As originally designed, electors voted for two candidates: the candidate with the most votes became president, and the candidate with the second-most votes became vice president. Federalists in 1796 wanted John Adams as president and Thomas Pinckney as vice president. Electors tried to conspire to ensure that Pinckney received fewer votes than Adams; otherwise, a tie would be sent to the House of Representatives. They also needed to ensure that both Adams and Pinckney secured more votes than rival Thomas Jefferson.

But too many Adams electors cast their second votes for someone other than Pinckney. In the end, Adams secured 71 electoral votes and Pinckney 59—but Jefferson received 68 electoral votes, good enough for second place and to serve as Adams’s vice president. Federalists had been thwarted by the decentralized design of the Electoral College.

The Twelfth Amendment permitted electors to designate which candidate would be the president and which would be the vice president. And no effort to thwart a candidate's election has succeeded since--in part because the system is designed to thwart such efforts.

Intrastate electoral independence

When electors exercise their independent judgment, they do so because of the deliberative process that occurs within their state and almost never collectively crosses state lines. In 1828, for instance, seven electors voted for William Smith as Andrew Jackson’s vice president instead of John Calhoun—all seven were in Georgia. Thirty electors in 1832 voted for William Wilkins as Andrew Jackson’s vice president instead of Martin Van Buren—all thirty were from Pennsylvania, as was Wilkins. And in 1836, twenty-three electors abstained from voting for vice president instead of supporting Democratic nominee Richard M. Johnson—all twenty-three were from Virginia.

Indeed, as long as electors are casting votes (many years ago, proposals for an "automatic" Electoral College were floated, eliminating the human element), it is good for electors to exercise independent judgment. In 1872, for instance, it was good that most Democratic electors voted for someone other than Democratic presidential nominee Horace Greeley, who died after Election Day. Or for eight electors to vote for someone other than William Howard Taft’s running mate James Sherman, who died a week before Election Day.

But exercising independent judgment as individual is quite different from conspiring collectively toward a common outcome, and particularly different from conspiring across state lines.

Political parties

It's true that we have something quite different than what the Framers anticipated in 1787 (but was quite well-established by 1804 when the Twelfth Amendment was ratified): the two-party political system that still dominates our election system. The rise of political parties created stability in the process—while electors could not conspire across states, their common partisan affiliation and the party’s selection of a nominee brought stability to the process across the country. Voters (or state legislatures selecting electors) knew well in advance that the electors would support a particular candidate--the candidate that party nominated. These were party loyalists.

While it would be essentially impossible to conspire during the meeting of the Electoral College, as a practical matter, partisan loyalties offered contrasting visions for presidential electors, and the Electoral College quickly became a fairly stable and routine selection process between the candidates of two parties. Indeed, such loyalty became so obvious that today almost all states have stopped listing the names of electors on the ballot, listing on the electors.

This description provides two important conclusions. First, the ex ante nature of presidential electors' loyalties makes for fairly easy affiliation with a single presidential candidate. It has been an impossible effort to corral presidential elector support across the states ex post, sometime after Election Day but before the meeting of the electors.

Second, the two-party system did change how elections occurred--we ended the expectation that races would be resolved in Congress. Since 1804, just two presidential and one vice-presidential election have been resolved in Congress--the election of 1824, where four candidates secured electoral votes but no one secured a majority; and the election of 1836, where just enough Virginia electors cast votes for someone other than the presumptive vice president that the election was sent to the Senate (which voted for the presumptive vice president anyway). As originally designed, the thought was that independent judgment would rarely result in a majority, sending the election to the House--a notion that collective deliberation would not occur!

An contingent election in the House

Furthermore, it's worth emphasizing that this Electoral College effort will not send the presidency to Hillary Clinton. It is, at best, designed to turn at least 38 Republican electors (and perhaps some Democratic electors) to vote for someone else (perhaps John Kasich), depriving Mr. Trump of at least 270 electoral votes and sending the election to the House of Representatives. But, as I've noted before, if the Republican-led House and the Republican-controlled state delegations--led by individuals like Paul Ryan--did not stop Mr. Trump at much easier points early in this campaign (such as during the Republican National Convention)--I find it hard to believe it would choose to deny him the presidency at this moment. Again, while it would be within the House's prerogative to select among the top three vote-getters in the implausible event no one secured 270 votes on December 19, it is yet another unlikely result.

Collective action

Finally, it takes only a moment to recognize the massive collective action problem, built into the design of the Electoral College. What assurance to electors have that their counterparts in the other 49 states (and the District of Columbia) will act as promised? Even if many did agree in advance, it is quite another to trust that such decisions are being made elsewhere.

And there is a potential unraveling problem in the digital age--while conspiracies might have been impossible in 1787, they face the unraveling of a decision-making process across time zones. Electors typically meet at noon in state capitals--noon, local time. (A few around 1 pm, and perhaps others scattered around these hours.) Early-voting electors have no guarantees that later-voting electors are voting as promised; and later-voting electors can observe if early-voting electors defected, which increases the likelihood of their own defection.

An effort doomed to fail

This piece, I hope, describes why such an effort is doomed to fail. It might be the case that, as a normative matter, we would prefer electors to conspire across state lines. But the system is designed to thwart such efforts--and quite successfully. We have had 53 presidential elections since the passage of the Twelfth Amendment; the outcomes have never been altered by "faithless" electors, and only once (the vice presidential election of 1836) was the race sent to Congress, which resolved it as would have been expected from popular voting, anyway.

It might be the case, as many have suddenly discovered, that the Framers had wisdom in authorizing the independent discretion of electors. But it is also the case that the Framers decidedly created a system that would be built upon independence during the meeting of electors and thwart conspiracies among electors--perhaps another element of our constitutional design that could inform what it is likely to occur this December 19.

Slopegraph of electoral votes and popular votes for presidential candidates

After my perspective on electoral vote and popular vote margins--in which I argued that the popular vote is meaningless--I thought about how Electoral College and popular vote margins related to one another. I took a stab at a visualization by creating a slopegraph.

This was much more challenging than I thought. And perhaps it's more deceptive than informative. But why not give it a shot and let the critiques come....

I wanted to show the relationship between electoral votes and popular votes. I started by taking the raw popular vote totals of each candidate--this could have been as a percentage of electoral vote, but 1968 really screwed things up and messed with the visualization if I were using the raw electoral vote totals as the left data point, so I took the slightly less perfect version of the raw vote totals. I started from 1944, which had just 531 electoral votes, in comparison to today's 538, and some other deviations along the way.

Then I opted for the percentage of the two-party popular vote margin, which was also imperfect as a kind of comparison--it might lead to significant fluctuations if there is a particularly significant third-party candidate who draws votes disproportionately from one candidate.

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In order to do the slopegraph on two different Y axes, I opted to calculate Z-scores for each side. That offered the relative performance between electoral votes and between popular votes, and it offered some comparable scale between the two from 1944 to 2016.

You can see a couple of significant differences between the electoral vote "landslides" of 1972 (Nixon winning 520 electoral votes, dark green) and 1980 (Reagan winning 489 electoral votes, light green). In '72, Nixon snagged a whopping 61.8% of the two-party popular vote. But in '80, Reagan secured just 55.3% of the two-party popular vote.

There's not much of a rhyme or reason between the performance in the Electoral College and the popular vote--except that we might notice particularly low-performing popular vote winners: Bush in 2000 (271 electoral votes, blue) had the razor-thin electoral advantage; somewhat healthier were Trump in 2016 (306 electoral votes, pending December 19, red) and Kennedy in 1960 (303 electoral votes, orange).

In any case, perhaps after all the flaws I've identified and the meaningless of the popular vote, anyway, such a slopegraph is of less than even marginal value. But here it is, if you find it of interest.

The National Popular Vote is a pretty terrible way to change our way of electing the president

Given that Hillary Clinton is on pace to outperform Donald Trump in the national popular vote but lose the electoral vote (and the presidency), this currently-meaningless scenario is renewing calls to alter or abolish the Electoral College. The most pressing plan is the National Popular Vote, a compact between the states to award their electoral votes to the winner of the national popular vote once 270 electoral votes' worth of states agree to do so--effectively circumventing the Electoral College and using the selection of electors on a nationwide rather than statewide basis. Having recently been approved in New York, 165 electoral votes' worth of states have approved the plan.

I want to set aside the issue of whether the Electoral College should be (actually or effectively) abolished for a moment. There are some good theoretical grounds, I think, why the Electoral College--at least, a system designed to recognize individual states and all residents in a state as a proxy for political power rather than simply raw voter totals--retains some (admittedly, imperfect!) merit. Instead, this argument will focus exclusively on the means of the National Popular Vote, as a legal matter and as a practical matter. On both grounds, I think it falls quite short.

As a legal matter, I have written extensively that the compact is unconstitutional absent congressional consent. States are prohibited from entering into interstate compacts with one another without the consent of Congress. The Supreme Court has slowly carved out exemptions to this provision and now (or most recently) only requires consent for compacts that affect the balance of power between the federal and state governments or among the several states. The decision of some states to change the balance of power among presidential electors--essentially, prior to an election, ensuring that non-compacting states' electors are irrelevant to the presidential election--is the kind of shift of power among states that requires congressional consent under even the most generous construction of the Compact Clause. As this process was designed to avoid Congress--and because I think congressional consent is unlikely in any event--the compact would fail. (More details can be dug out of those articles.)

There have been other concerns raised by other commentators--that the compact would improperly strip the House of its power to choose a president in a contingent election when no candidate secured a majority; that the state legislature's plan to award electors on a basis other than the decision of the people in that state is prohibited; that the compact may run afoul of the Voting Rights Act for certain jurisdictions with sufficiently minority populations.

As a practical matter, the decision to change presidential elections at a state level without including a uniform national plan for elections, or empower Congress to do so, is deeply problematic. A recent, and quite significant, effort to amend the Constitution took place in 1970, and even it fell short of the likely required federal power we would need to regulate presidential elections. A nice summary from CQ Almanac shows some of the things a federal amendment was designed to do. For instance, the constitutional amendment guaranteed some uniformity in voter qualifications:

"The electors of President and Vice President in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature, except that for electors of President and Vice President, the legislature of any State may prescribe less restrictive residence qualifications and for electors of President and Vice President the Congress may establish uniform residence qualifications."

Additionally, the proposed amendment provided a times, places, and manner provision for presidential elections, similar to such a provision for congressional elections:

"The times, places, and manner of holding such elections and entitlement to inclusion on the ballot shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations.

But there are no such provisions for the National Popular Vote. I've written about the "invisible federalism" that exists within the Electoral College. Right now, fifty-one jurisdictions set their own rules. That means a true national popular vote would require some significant centralization of our electoral process, some of which was baked into the 1970 proposed constitutional amendment. Consider some things that ought to be nationalized in a presidential election:

Uniform voter qualifications. States have some fairly dramatic differences in the qualifications for voters. Some bar anyone ever convicted of a felony from voting, others permit felons imprisoned to vote. Some in the future may lower their voting age, as they have done in the past. Some have different standards for the mentally ill. When faced with such an option to the proposed amendment, Congress rejected it; but it would likely need to be an element of any future effort.

Uniform voting procedures. States set different absentee and early voting requirements. They set different residency requirements. Some have voter identification laws and others don't. Some open their polls at different hours. Some have all mail-in elections. Recount procedures trigger differently in different states. The proposed constitutional amendment got part of the way there in permitting Congress to regulate such procedures if it deemed such laws necessary to preserve uniformity.

Uniform ballot access standards. Even more so in an election like the one that took place in 2016, state permit different candidates to appear on the ballot. Evan McMullin and Jill Stein appeared on the ballot in a handful of jurisdictions. States like Texas have extremely early ballot access deadlines for independent candidates. Indeed, an effort to keep Donald Trump off the ballot in Minnesota would have wreaked havoc in a national popular vote total.

Standard ballot content. Consider, for instance, California including a dozen ballot propositions on its presidential ballot, boosting turnout; or hotly-contested United States Senate races, which influence turnout. We may see some oddities in turnout simply because of the other races that happen to appear on the ballot--and if we want a truly national election, we ought to aspire to more uniform standards.

A requirement to hold a popular election in the first place. And under the current system, states are not even required to hold a popular election in the first place. A state legislature could strip its citizens of the right to vote in presidential elections if it so desires, something like many states near the Founding did, or like Colorado did in 1876. Of course, such a decision might cut off the nose to spite the face... but remains within the realm of possibility. (A version of this challenge would be a state's future decision to use instant run-off voting, which offers different challenges in tabulating the votes from that jurisdiction--in a true national election, we would need to decide whether first past the post or an alternative system would be used. This is hypothetical at the moment because every state currently uses first past the post.)

One rejoinder I've heard goes something like this: "Yes, the votes are all commingled, but that doesn't really mean anything. After all, the electoral votes are all commingled in the final totals, too, even though there are separate elections that have occurred using different systems."

But I've never understood this rejoinder. It's something like saying, "Yes, I understand you planned to eat roast beef, mashed potatoes, green peas, and apple pie tonight. But because they're all going to end up in your stomach anyway, there's no difference if we simply blended them all together before consuming them."

You see, our present electoral system holds fifty-one separate contests. States can do whatever they want within their electoral process--they're going to get a fixed number of electoral votes, and whatever they do to determine who gets those votes (or, more precisely, who the electors will be) is up to each state. Yes, at the end of the day, the votes are combined, but only after the results have been limited to the boundaries of that particular state.

Now, it's also the case that many elections are administered at the county level, and those county-level decisions affect statewide elections--the format of the ballot, the type of ballot used (optical scan or direct-recording electronic voting machine), local races, the training for poll works, and so on. And perhaps we have to accept some lack of uniformity in our electoral process simply because of the expansive country we live in. But it may be worth thinking carefully about how uniform our elections should look (perhaps drawing inspiration from other countries that maintain both national and local election systems), and what that ought to look like in a constitutional amendment. The National Popular Vote offers absolutely no opportunity to ask these questions.

Finally, I've mentioned before that we tend to prefer majority winners in our electoral system, and we have seen that the Electoral College can turn fairly small margins into rather lopsided victories, a kind of affirmation for the president (mostly, I think, a happy and incidental effect of the system, not a part of its design). Only some presidents secure more than 50% of the popular vote but all secure a majority of the electoral vote (or the House chooses the president by a majority of states). A runoff or some guarantee that the winner gets 50% of the vote--or a nationalized instant run-off process. But the National Popular Vote makes no such guarantee. Perhaps we are ready to say that the person who gets the most votes wins, as we often do in other elections where a plurality winner takes office. But it is worth considering whether that, too, should be a part of the conversation of a new presidential election system--something that simply cannot be accomplished under the National Popular Vote.

It may well be that Americans are ready for a new system of electing the president, the normative or theoretical reasons a matter beyond the scope of this post. But in doing so, the National Popular Vote is a fairly ineffective way of doing so, and, as a cure for the problems perceived by many, may ultimately be worse than the disease.

No, the Electoral College will not give the presidency to Hillary Clinton

There is a nascent but rapidly growing effort from supporters of Hillary Clinton to persuade presidential electors who would otherwise support Donald Trump to cast votes for Mrs. Clinton instead when the Electoral College meets December 19. Absent an extraordinary change of circumstances, it simply won't happen. Mr. Trump will win a majority of electoral votes on December 19 and become the 45th president of the United States.

It's worth noting that a lot of options to affect the presidential outcome have long since past--usually, waiting until after the election is not a good idea to affect an election.

I wrote back in March that state legislatures could choose their own electors instead of leaving the matter to a popular vote; but after a popular vote was held November 8, that strategy is not an option.

I also wrote in August that parties could select electors inclined to support their preferred candidate. The electors, however, have already been selected.

Instead, the only strategy for Mrs. Clinton's supporters is to turn to the Electoral College itself and persuade electors to be "faithless"--that is, persuade them to vote not for Mr. Trump, to whom they pledged (formally or informally) their support, but Mrs. Clinton.

First, it's worth noting that these are loyal Republicans who were selected as Trump electors. Many of them are loyal Trump supporters. The list of viable options, then, is limited to those who oppose Mr. Trump--and not just oppose him, but affirmatively prefer Mrs. Clinton (more on that point below). And this after Mr. Trump has won the election (at least, by all popular reports). It might be that Mr. Trump is not overly popular with many in the Republican establishment. But convincing them now to vote for someone else seems impossible.

Furthermore, these are electors in states that cast a plurality of their votes for Mr. Trump. Going to them and telling them to ignore the wishes of the voters in their own state for the wishes of the country as a whole--which, really, is overwhelmingly the wishes of California and New York--is even more unlikely.

Second, the electors would need to flip to Mrs. Clinton, and not simply refuse to vote for Mr. Trump. In order for a candidate to win, he must secure 270 electoral votes. If he fails to do so, the race is thrown to the House of Representatives, where each state receives one vote, and a majority of the states (26) is required to secure the presidency. Even if enough Trump electors threw all their votes to, say, Mitt Romney, no one would have a majority, the election would go to the House, and the Republican-controlled House where Republicans control a majority of state delegations would, in all likelihood, simply vote for Mr. Trump--absent yet another colossal effort to convince them to change their minds and somehow vote for Mrs. Clinton.

Third, the margin of victory is onerous for Mrs. Clinton's supporters. It appears Mr. Trump has won at least 290 electoral votes, meaning 21 electors would need to switch to Mrs. Clinton to deny him a majority, 22 electors to give her a majority, and 23 or 24 electors to account for Mrs. Clinton's own possible "faithless" electors. If he holds onto Michigan, she'll have secured 306 electoral votes, meaning the numbers increase to 37, 38, and 39 or 40.

These are Herculean numbers under almost any scenario. Consider that in the last 100 years, just nine (depending on your math) electors have been "faithless" and voted for someone other than the person pledged to support. Granted, no such concerted effort has been made to change electors' minds. Robert M. Alexander has surveyed presidential electors and discovered that serious lobbying efforts have occurred before, and that about 10% of electors in previous elections have considered voting for someone else--but did not do so.

Fourth, a few states purport to bind their electors to the individuals they are pledged to support. I've argued such laws may well be unconstitutional and should be repealed. But as they are on the books, it would either limit the pool of possible electors who could change their minds or stir litigation, possibly in multiple states, that would inspire even greater complexity, particularly if Congress is faced with multiple slates of electors.

In short, there is no realistic chance that the Electoral College will change the result of this election. This is different than saying it is not legally possible; as I've noted and defended repeatedly, electors are permitted to vote for whomever they desire--it is that there is essentially no likelihood enough of the would do so in such a way to change the outcome of the election. Circumstances change, of course, and something might still inspire a significant number of electors to change their minds and vote for someone else. But the odds are low. And we have fairly settled expectations that our electors will not be "faithless," something unlikely to change in the weeks ahead.

Hillary Clinton's popular vote margin is meaningless in every way (except pithy tweets)

Hillary Clinton is on pace to secure about a 1 or 2 percentage point margin over Donald Trump in the popular vote totals in the 2016 presidential elections. As of this moment, Mrs. Clinton has about 1.6 million more votes than Mr. Trump in that tally. (UPDATE: this post was last updated Dec. 30.)

Of course, this margin is meaningless. Except, I suppose, in pithy tweets designed to prove a point that is... well, meaningless.

First, campaigns would behave differently if they won elections based on the popular vote rather than the Electoral College. Jonathan Adler ably makes this point. Campaigns are designed to eek out, at any margin, electoral votes, not popular votes. And if the popular vote mattered, then campaigns would be designed differently. The most common analogy is to look at the 1960 World Series. The Yankees outscored the Pirates 55 runs to 27 runs. But the Pirates won the Series, 4 games to 3. That's because it doesn't matter if the Yankees won a game 16-3 or 12-0; the only thing that matters is winning 4 games. The rules define the contest. (UPDATE: Indeed, it appears the Clinton campaign chose to spend money in places like Chicago and New Orleans to increase the popular vote margin--at the expense of "swing" states in the Electoral College.)

Second, voters would behave differently, too. Would New Mexicans have cast over 73,000 ballots for former Republican Governor-turned-Libertarnian nominee Gary Johnson? Would Utahns have cast over 175,000 ballots for Evan McMullin? Would the Great Plains and upper Rockies have voted in such high numbers for the Libertarian nominee (over 5% of the vote in Montana, Wyoming, North Dakota, and South Dakota)? You see, if their votes "mattered" in a national popular vote total, they may well have voted differently. Instead, because their results were restricted to their home states--often fairly reliably Republican or Democratic--voters may have behaved differently.

Third, our laws would have to be different to have a true popular vote tally. Consider, for instance, that Mr. McMullin was only on the ballot in a handful of states, including Utah; or that Green Party candidate Jill Stein was not on the ballot in all fifty states. Or, consider that some states have strict forms of voter identification, and others have none at all; some allow incarcerated felons to vote, and other prohibit them from ever voting if they have been convicted of a felony. We run fifty-one elections in the presidential election; dumping them into a single basket of the "national popular vote" simply doesn't tell us anything meaningful. (For more on that, consider my article in the Arizona State Law Journal on the topic.)

Fourth, while Mrs. Clinton may have the most popular votes, she will be far from a majority of the popular vote. She is likely to secure something around 48% of the popular vote total--meaning 52% of Americans voted for someone else. We tend to prefer majority winners, even though each state in the Electoral College can be carried by a plurality, and many other elections also occur by plurality winners. Nevertheless, note how the Electoral College requires an outright majority to win. And fairly narrow margins can quickly turn into apparent Electoral College landslides--consider 2012, in which Barack Obama defeated Mitt Romney by a popular vote margin of 51.1% to 47.2%, but won the Electoral College soundly, 332 to 206. Until a system with a runoff is in place, we might prefer a system that offers a fairly clear majority winner, whatever the rules may be.

Fifth, this result is exactly what the Electoral College was designed to do! One reason for the Electoral College was to protect the smaller states by guaranteeing them a meaningful say in the outcome of the presidential election, as each state receives three electoral votes, and the smallest states pack a greater punch in the Electoral College than their populations would otherwise suggest. But the smallest states are quite diverse in their partisan allegiances in recent years, and the Electoral College is doing something else.

But as another way of protecting smaller states, the Electoral College ensures that a candidate must have broad geographic support. That is, she cannot "run up the score" in a small number of jurisdictions. Indeed, at the Founding, some worried that New York or Pennsylvania would simply dominate the elections. That's the flip side of guaranteeing some say to smaller states--it's to ensure a broader base of support across the country. Trump looks to carry the plurality in 30 states. That's very broad support in a country of 51 jurisdictions! Granted, some of the support was somewhat narrow, of course--it's the reason he'll lose the popular vote total.

Indeed, a couple of charts displaying the sheer disparity of performance in two states--California and New York--effectively overwhelm the entire rest of the country.

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Yes, California and New York two of the largest states. But their margin for Mrs. Clinton will likely exceed 4 million votes; the rest of the country combined will offer something like 3.8 million votes in favor of Mr. Trump. It is a deep geographic imbalance, reflecting a strong intensity of preference in two states for one candidate.

Undoubtedly, there is an appeal to the cry, "The person who gets the most votes wins." But given many complications in our federalism-driven election regime, the answers are far more complicated. In particular, there remain good (at least, good to me) normative reasons for the Electoral College--a requirement of broad geographic support for the presidency rather than pockets of intense support in a couple of places being one of them. For more, read some of my articles on the subject.... (For more on this election and the Electoral College, see John McGinnis's perspective here.)

(I should note that I do not believe we'll see a major push to abolish the Electoral College. The National Popular Vote effort has moved forward in a handful of jurisdictions, mostly Democratic-controlled, and it's pretty much run out of new places to go.)

(UPDATE: Some have critiqued this final claim, arguing that it devalues the votes in some states. It's not quite that--instead, it's that the Electoral College is actually designed to ensure broad geographic support rather than intense preferences in a few select states. I concede that "designed" may be a strong term, for some claim that it was not the outright intent of the presidential election system, but simply an indirect byproduct, but it has some support in founding documents.)

(UPDATE: these charts were updated with results as of Dec. 30.)

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.

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.