When Republican Senator Mike Lee tweeted last month that “We’re not a democracy,” he wasn’t kidding. He later expanded the thought, saying that it was not “the prerogative of government to reflexively carry out the will of the majority of its citizens” and that “power is not found in mere majorities, but in carefully balanced power.”
Americans are by now familiar with many of those “carefully balanced” elements in the nation’s political system: a Senate that gives equal representation to California and Wyoming, despite California having 68 times Wyoming’s population; an Electoral College that has given the presidency to the popular-vote loser twice in the past 20 years; gerrymandered congressional districts drawn to keep incumbents in power.
But there’s one more way in which the political will of the majority can be thwarted—and, in a close election, throw the presidency to someone voters have rejected. But unlike with other undemocratic elements of American politics, which have proved difficult to change, a fix could be put into place quickly.
Imagine an extraordinarily close presidential election. Say Joe Biden, once all the swing-state votes are counted, ends up winning Arizona, Nevada, Wisconsin, Michigan, and the second district of Nebraska. And say Donald Trump ends up winning Pennsylvania, North Carolina, Georgia, and the second district of Maine.
That’s an entirely possible scenario—indeed, as of this writing, it’s what the polls currently predict—and it would add up to the slimmest of possible Biden wins, 270 to 268 in the Electoral College. A very close race, but Democrats would celebrate nonetheless.
With such a close margin, though, the incredible and unilateral power to change the election’s outcome would now rest in the hands of Biden’s electors. After all, “we’re not a democracy,” and the 538 electors are the ones who actually elect a president.
Let’s say, in this scenario, that one Biden elector decides to go rogue. Perhaps he’s had secret Trumpist tendencies all along, or thinks the president’s voter-fraud fantasies are real. Perhaps he supported Bernie Sanders in the primaries and has second thoughts about the more moderate Biden. Or perhaps some wealthy donor has quietly offered him $50 million to change his mind.
Whatever the reason, all it would take is the action of a single faithless elector to deny Biden and the Democrats the presidency. If that person wrote down someone else’s name, Biden would drop from 270 to 269 electoral votes, which would mean he’d no longer have a majority.
Under the Constitution, such a scenario throws the election to the House of Representatives, which would then hold a so-called contingent election. Democrats will have a majority of seats in the incoming House—but a contingent election isn’t decided in a traditional House-wide vote. Instead, each state’s delegation votes as a single unit, with the party that holds the majority of a state’s seats getting its way. (For example, Wisconsin will likely have five Republicans and three Democrats in the next House—so its delegation would be expected to vote for a Republican, even if Biden carries the state.) California and Wyoming are again given equal power, despite one having 53 House members and the other having one.
Although dozens of House races have yet to be called, the Republicans will probably control a majority of the state delegations. The GOP currently controls 26 delegations, and Republicans will likely gain seats once all votes are counted. (If all of the current leads in uncalled House races hold, Republicans will control 29 delegations, Democrats will control 20, and one will be tied.)
Those House Republicans would almost certainly vote to give Donald Trump another term—meaning that a popular-vote win and an Electoral College win and a Democratic majority in the House of Representatives still wouldn’t be enough for Biden to take office. All because of one person’s decision.
You may be thinking: Didn’t the Supreme Court solve this? Indeed, this summer, in Chiafalo v. Washington, the Court ruled 9–0 that it is constitutional for a state to require its electors to vote for the candidate who won its popular vote. But that ruling matters only for states that actually have such a requirement—and only 33 states and the District of Columbia do.
In many of those states, the “requirement” is toothless. Only five have any sort of penalty (such as a fine) for a faithless elector. And in only 14 states do faithless electors get removed and have their rogue vote replaced with what voters decided. In all the rest (plus D.C.), a faithless elector’s vote for, say, Kanye West would be duly recorded and counted.
And the Court’s ruling in Chiafalo only said that a state may enforce a penalty against such an elector, not that it must. A governor or an attorney general of the opposite party could decide not to.
Is this scenario likely? Probably not—most electors are loyal party members who will happily support their candidate. But throughout American history, 165 electors have voted for someone other than their state’s winner. In 2016, there were 10 faithless electors, the most in more than a century. And some disappointed Democrats wanted even more, lobbying Republican electors to vote for Hillary Clinton because she had won the popular vote—or to vote for anyone but Trump in an attempt to throw the election to the House.
State laws prevented three electors from casting their desired protest vote, but the other seven sailed through. Trump ended up with 304 electoral votes, not the 306 he seemed to have won on Election Night; Clinton lost even more votes, ending up with 227, not 232. (The stray votes went to Colin Powell, Bernie Sanders, Ron Paul, John Kasich, and Faith Spotted Eagle.) The difference between 306 electoral votes and 304 is a footnote; the difference between 270 and 269 is a political earthquake.
However unlikely it may be, this scenario can be avoided. The Uniform Law Commission, which drafts and recommends legislation for states, has written the Uniform Faithful Presidential Electors Act, which replaces electors who do not vote as they’ve pledged to. It’s been passed in six states—Montana, Nevada, Nebraska, Minnesota, Indiana, and, most recently, Washington, which had four faithless electors in 2016. No need for a constitutional amendment or convention.
Some people, like Mike Lee, say they’re worried about the tyranny of the majority. A faithless elector in a close presidential election could be tyranny of one individual. There are enough undemocratic institutions in American government—this doesn’t need to be one of them.
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