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.