Cartoon: Joep Bertrams, The Netherlands, May 19, 2017
When Georgia was finally called for Joe Biden on November 13, 10 days after the presidential election, much was made of the fact that his electoral count of 306 votes matched that won by Donald Trump in 2016. Lost in the ensuing avalanche of fraud claims was that Trump, while initially winning 306 votes, only received 304 votes when the results were finalized by the Electoral College. Should Biden’s count hold when the Electoral College meets later this month (by no means a certainty), Trump will have to suffer the indignity (what in vaudeville parlance was called “the banana peel on the way out the door”) of being bested one last time by Biden.
So what happened to those two electoral votes Trump thought he’d won? And why might Biden suffer a similar fate?
Well, the problem stems from the fact that the Electoral College, that constitutional relic of the Framers’ 18th. Century intellectual and social arrogance didn’t come with coherent or rational operating instructions.
Completely overlooked in the cursory review of the Constitution afforded America’s high school students is how that document was designed to circumvent democracy rather than enhance it. Of the four cornerstones of the new government – the presidency, the House of Representatives, the Senate and the federal courts – the voters were only permitted to directly elect the members of the House. The courts were to be appointed, the Senators elected by state legislators, and the president to be chosen by a miniscule number of Electors appointed by the state legislatures. Further, by leaving it up to each state to determine voter qualifications, the Framers ensured that voting would effectually be restricted to property-owning white Protestant males, 21 and older.¹
As to the Electoral College, Alexander Hamilton made it clear in his Federalist Paper No. 68 that electors, who he and other Framers assumed would come from the upper, richer, better educated levels of society, would therefore be more, “opposed to cabal, intrigue, and corruption” than the unwashed masses. Further, such electors would, “be most likely to possess the information and discernment” required to determine the most qualified individuals to be president and thus would, “prevent individuals who are unfit for a variety of reasons to be in the position of chief executive of the country”. Hamilton went on to confidently predict that:
The process of the Electoral College affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.
How badly these safeguards failed in 2016 needs no elucidation.
The Constitution established no link between a state’s popular presidential vote and the way an elector must vote, leaving those messy details up to each state to work out for themselves. Although over the years all states except Maine and Nebraska have deemed that the winner of the state’s popular vote will automatically receive all the state’s electoral votes in the form of a slate of electors designated by the winner’s political party, only 33 states have laws on their books requiring those electors to vote for the winning candidate. And until recently, little guidance had ever been provided by the federal courts.
But getting back to 2016. Following Trump’s election, a fool’s errand movement calling itself the “Hamilton Electors” sprang up with the stated goal of persuading at least 37 Trump electors to take the Federalist papers seriously and to decline to vote for a man obviously unfit to be president. By doing so these “faithless electors” would deny Trump the 270 electoral votes needed to become president and would throw the election into the House of Representatives. That getting 37 electors to turn their coats would be an impossibility, or the fact that Trump would have been elected anyway because of the way the Constitution set up presidential voting by the House, does not seem to have occurred to this group.²
(On the Hamilton Electors, see “The process of [the Electoral College] election affords a moral certainty.” The Federalist Papers, Number 68. And a Petition.)
Although the Hamilton Electors scheme fizzled out (any questionable Trump-pledged electors were cajoled, browbeaten and even politically-threatened into sticking with their candidate), when the Electoral College met on Dec. 19, 2016, ten individuals did become faithless electors, deserting the candidate they were pledged to support and casting their votes for someone else, the largest number to do so in the history of the Electoral College.³ Interestingly enough, only two Trump electors abandoned him, whereas eight attempted to jump ship on Hillary (one later jumped back).
Both of Trump’s faithless electors were from Texas, which did not require electors to be faithful. One cast his vote for John Kasich, the other for Ron Paul. With these two defections Trump’s electoral vote dropped from 306 to 304. Amusingly enough (though Trump likely failed to see the humor), Mike Pence received 305 vice presidential electoral votes.
Due to the differing ways in which states administer the electoral system, two of Clinton faithless electors were summarily replaced, but the remaining five, all from states with no requirement that they vote for the popular vote winner, went on to vote for someone other than Hillary. As a result, although she had initially won 232 electoral votes, with the defection of five electors (one voted for Bernie Sanders, three voted for Colin Powell (!) and one voted for Native American activist, Faith Spotted Eagle), her final tally was reduced to 227 votes.
Court challenges were soon initiated by two Clinton electors who had been replaced or fined for being “faithless”, their defense being that there was no constitutional provision which prohibited them from voting their conscience. These cases eventually worked their way to the Supreme Court where, on July 6, 2020 in an unusual unanimous decision (Chiafalo v. Washington), the court affirmed the right of a state to require that an elector vote in the manner prescribed by their state and to replace or otherwise penalize them if they failed to do so.
This brings us to December 14, 2020 when the Electoral College meets to count the electoral votes certified by each state in this year’s election. It’s probably unnecessary to say that, while it’s irrefutable that Biden has fairly won 306 electoral votes, the current political atmosphere is so toxic, and a large segment of one political party so irrational and desperate, that the Supreme Court’s decision notwithstanding, almost anything is possible.
There are still a number of states who impose no requirement on how their electors vote. Added to this, it requires little imagination to envision one or more Biden electors from a Republican-controlled state such as GA or AZ or even PA being “persuaded” to abstain or to switch his/her vote on the promise that no penalty would be imposed by their state. Of course, as in 2016, the odds are about 0% that enough electors could be suborned to throw the race into the House of Representatives (who would then elect Trump since the GOP still controls a majority of state legislatures). But enough could be dragged away to push Biden’s 306 vote total below Trump’s 304, thus at least saving Donny’s ego from that well-deserved banana peel.
¹Little known aspects of voter suffrage in America include the fact that between 1776 and 1807 property-owning single women were permitted to vote in New Jersey. Or that African American males have been permitted to vote in Vermont since 1777.
²Under the Constitution, presidential voting by the House is conducted on the basis of one vote per state, a simple majority vote being necessary for election. Given that in January 2017 Republicans controlled 30 state legislatures; Trump’s election would have been inevitable. Only twice, in 1801 and again in 1825, has it been necessary for the House to elect the president.
³This number was exceeded in 1872 when 63 electors pledged to presidential candidate Horace Greeley switched their votes to other individuals. But technically they were not “faithless electors” given that Greeley had died after the election but before the Electoral College had met.
After Nixon’s landslide win in 1972, one Nixon-pledged elector, Roger MacBride, voted instead for Libertarian Party candidates because, in McBrides view, Nixon had moved the national governmental towards “ever greater control over the lives of us all.” By casting his vote, MacBride gave the first ever electoral vote to a woman candidate, the Libertarian vice presidential nominee Theodora Nathan.SEE ALSO