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.