The Electoral College won't stop Trump--but it may change how political parties pick electors in 2020

The presidential election is quickly approaching--on December 19, in state capitals around the country, presidential electors will assemble and vote overwhelmingly for Donald Trump and for Hillary Clinton. It is almost guaranteed that Mr. Trump will secure at least 270 electoral votes, the minimum necessary, and probably something close to the 306 electoral votes he is presumed to receive. And while there have been discussions among "Hamilton Electors" to vote for someone else, the Constitution is designed to thwart such conspiracies across states, and Mr. Trump's presumptive lead is all but insurmountable. (Please note that while the Electoral College can elect someone other than Mr. Trump, or can elect no one at all, I am simply describing, as the links above suggest, why it is, among other things, a lead that is "all but insurmountable.")

Last week, five presidential electors in three states have filed lawsuits in federal courts seeking to strike down laws that purport to bind electors to vote for the candidates they are pledged to support. They seek to ensure that they have the right to vote for whomever they wish, regardless of the candidate they are supposed to support, and to have a court conclude that such laws instituting criminal or civil penalties are unconstitutional. (For the record, I agree that such laws are unconstitutional.) The litigation seeks to limit the scope of Ray v. Blair, the 1952 Supreme Court decision that affirmed the ability of states to impose (non-binding) pledges on presidential electors. (The enforceability of such pledges was left for another day.)

But litigation occurs in a particular context, and there are significant procedural problems to these claims. Those problems may prevent courts from reaching the merits of such claims. These claims all seriously struggle from the likely defense of laches, as the electors have brought claims just days before the Electoral College is scheduled to meet--when they have been nominees for many months, and when they knew they would be called to serve as of November 9. It is not immediately obvious that the state laws in California and Colorado empower state election officials to remove "faithless" electors from their offices, which suggests that abstention might apply, or simply the application of a canon of statutory interpretation that invokes the constitutional avoidance doctrine. The pleadings of some do not make it obvious that the electors intend to violate their pledge, only that they want to liberty to do so, which may (perhaps) lead to ripeness issues or even the failure to state a claim.

But even setting these procedural issues aside, the curious nature of these claims is where they have been filed. They are purporting to be an "anti-Trump" movement. But, these are Clinton electors in states carried by Mrs. Clinton! That is, their movement would undermine the Democratic candidate's ability to succeed in the Electoral College! And even total victory in these states would yield a grand total of zero Trump electors voting for someone other than Mr. Trump!

Now, I suppose there are two long-game purposes in this effort. The first is for these electors to force a kind of "national conversation" about the independent judgment of electors and to (quite publicly) encourage Trump electors to join them and vote for someone other than Mr. Trump. (Of course, they were already voting for someone other than Mr. Trump.) While freeing Clinton electors from their pledge has zero impact on the bottom line--if every Clinton elector voted for, say, John Kasich, then Trump still wins with 306 electoral votes--it could spark discussion with other electors.

The second is that a ruling in one court, perhaps appealed to a circuit court or even the Supreme Court, would have a ripple effect in other jurisdictions with Trump electors. Given the procedural hurdles already in place, it is unlikely that this could happen, but remains a possibility.

Of course, further buried within these electors' lawsuits is that they have largely been filed by former (and, perhaps, current) supporters of Bernie Sanders, some of whom before even Election Day expressed public displeasure at the prospect of casting votes for Mrs. Clinton. While the salutary effort is something in the vein of "anti-Trump," in reality it seems to be driven more by anti... well, Democratic establishment, at least for these particular Colorado and Washington electors.

(It's also worth noting that multiple Trump electors have expressed opposition to Mr. Trump--two electors, one from Georgia and another from Texas, intend to resign when the Electoral College meets by refusing to show; a third, from Texas, once supported Mr. Trump but has since written a piece published in the New York Times opposing him.)

So these lawsuits are not really designed to stop Mr. Trump from securing 306 electoral votes (or, really, the 270 electoral votes he needs to win). But it has created some rather curious alliances. For instance, the Republican elected officials called to defend the law in Colorado have come out quite strongly against the plaintiffs--that is, these Republicans are aggressively defending Mrs. Clinton's electoral vote total in Colorado. And the Colorado Republican Party has intervened in the case--and the Colorado Democratic Party has not.

That said, it is, I think, less curious than one might expect, at least the behavior of Republicans and when viewed through a (perhaps) Rawlsian framework. One might take the myopic view and claim that Colorado Republicans are trying to defend Mr. Trump's election, but that strikes me fairly unlikely--consider the two long-game purposes I enumerated above, which are exceedingly remote; and consider that the direct impact of the litigation would undermine Mrs. Clinton's position far more than Mr. Trump's.

Instead, consider what it would mean in a state--any state, regardless of your partisan preference--if you had fairly settled expectations of the roles of electors, and even a law that carried some generic threat against electors who acted against their pledge, and those settled expectations were called into question. As a member of a political party or a loyal partisan official, such a result would be fairly horrifying. After all, it would mean that your formerly-loyal slate of electors would now be open to influence; and even if your party's slate of electors did not win this particular election, it would also affect your slate of electors in future elections when you did win.

Despite the fact that electors may prefer independence (and that the Constitution, in my view, mandates it!), parties certainly do not prefer it. It is a reason they are empowered in most states to choose the slates of presidential electors. And it is a terrific loss of power if those electors now expect to act freely--indeed, so freely that they may undermine the party's nominee. The rational behavior of partisan officials, then, would be to defend such laws quite vigorously, regardless of partisan affiliation.

I expect, then, that this behavior of presidential electors will fairly significantly alter the behavior of political parties selecting slates of presidential electors in 2020, particularly if parties are worried that the legal pledges and settled expectations from previous elections have been called into grave doubt. Party reforms are some of the easiest reforms, because they require no new laws. But I would expect, at least in some jurisdictions, to see to following changes.

First, I would expect to see delays in the selection of slates of electors. Parties typically nominate slates of electors in the spring or summer, often before the parties' nominating conventions (and sometimes even before the parties' nominees are known). But in most states, such slates need not be submitted until just weeks before the November election date.

Second, parties are likely to engage in far greater vetting of such nominees. By postponing the selection process, parties might be more inclined to choose electors who have already gone on record expressing support of the party's presumptive nominee.

Third, parties might institute more control over who qualifies as electors for their party. They often include rules that one must be a member of that party, such as someone who voted in that party's primary. But they may require longer periods of party affiliationor greater demonstration of loyalty before qualifying as an elector.

Fourth, parties may defer to the presumptive nominee in selecting slates of electors. It's understandable why Bill Clinton was an elector in New York, of course! And greater control to candidates would ensure greater loyalty for nominees.

It is the case, I think, that the Constitution requires independence of electors; that these electors' efforts to sue to undo state pledges will likely fail; and that even in success the Electoral College will not meaningfully affect the settled expectations of the outcome of this election. But after all this, when the dust settles, I anticipate some significant change in behavior from political parties to fend off future efforts from electors to undermine their own preferences.