Advice for Electors Thinking About Changing Their Vote in 2016 or Beyond
The article below is written as advice to potential “faithless electors” thinking about how to vote in 2016, but doubles as a lesson in civics regarding the powers and responsibilities of the U.S. Electoral College. Below we use 2016 as an example, but the logic generally applies to any Presidential election. Obviously this article necessarily includes opinion (it is in our blog section, not our facts or myths sections), but the opinion is meant to be educational, centered, and grounded in facts and American history. Also, this article clearly will become dated, remember that it is written from a post-general election pre-electoral vote 2016 perspective. Feel free to comment below.
In 2016, and in any race moving forward under the Electoral College system established by Article II of the Constitution and Amended by the 12th Amendment, electors need to make a choice for the country when they officially elect our next President and Vice President by voting “on the first Monday after the second Wednesday in December” which in 2016 is December 19th.
TIP: For 2016 the term “Hamilton electors” is being used as a synonym “faithless electors” (this being a reference to the founding father Alexander Hamilton’s Federalist ideology as explained in the Federalist #68). So then, this page is also “advice for Hamilton electors”. See HamiltonElectors.com.
Here is some advice to consider when thinking about how you will cast your vote:
First, a quick refresher on the rules. The general election is an advisory vote, and the electors pick the President. There are 538 electors and a 270 majority vote is needed to elect both the President and Vice President (who are voted for on separate ballots). If no candidate wins a 270 majority, the vote goes to the House and they elect the President from the candidates who got the three highest totals of electoral votes. See the parts of the Constitution that apply to voting.
Donald Trump, despite being projected to have lost the popular vote to Clinton, has 290 projected votes based on our current winner-take-all customs where state electors vote with the states’ popular votes. However, this is custom, not Constitution.
The Constitution gives all the power to the electors in terms of electing the President and Vice President. This power doesn’t rest with the citizens, the states, the federal government, foreign governments, intellectuals, the media, the projected winner of the states, the winner of the national popular vote, or anyone else. It is the Constitutional right of the electors.
State-based rules about voting with the states’ popular vote, or even [potentially in the future] national popular vote are not in the Constitution. In 21 states, electors can change their vote without punishment. In 8 states there is a fee. In the rest of the states the rules are more strict. But, nothing overrides the Constitution. Thus, electors are, at the most fundamental and Constitutional level, their own free agents with only one job, “to do what is best for the United States of America”.
The founders of our nation created the electoral system to prevent special interest corruption or Tyrants. That means Adams, Jefferson, Franklin, Madison, Henry, etc, etc gave you, the elector, both great power and great responsibility. The Electoral College is the last line of defense for our nation, it both is what makes America a Republic and what ensures the Republic.
However, despite the great power and responsibly, being an elector doesn’t come with a Constitutional guide pertaining to morals and ethics beyond state rules, U.S. Codes, and ancillary documents like the Federalist #10 (Madison), #47 and #51 (Madison, separation of powers) and #68 (Hamilton, the electoral college).
Arguably, all else aside, the most important thing for the country is to go into January 20th United.
Given the importance of Uniting the people and the states, it doesn’t make much sense for an elector to flip votes to a major candidate in a tight race. Although I personally wish Hillary won, I am of the mind that it would be unfair and divisive for her to be elected by electoral vote, despite it being the right of the elector. It will be seen as a third “corrupt bargain“ (a bargain between Washington insiders) and those who voted for Trump’s brand of “hope and change” will feel cheated. Not only that, but rural America will likely feel cheated, and this will only take us back closer to divisive times like the 1860’s and 1960’s.
So what is my advice, aside from switching a vote to Clinton will be seen is divisive (as it would have been with Gore in 2000)? My advice is that, if an elector feels either major party has put forth a Tyrant or a special interest candidate (a candidate with interests not in the public interest, but in their own particular or corporate interest), then they should do their constitutional duty and vote for someone else who they feel are more fit to lead.
TIP: If I were an elector I would not announce my intentions of being a “Hamilton elector”. Electors can be replaced up to December 13, 2016. The official rule is “States must make final decisions in any controversies over the appointment of their electors at least six days before the meeting of the Electors. This is so their electoral votes will be presumed valid when presented to Congress.” DO NOT GET YOURSELF REPLACED! If you are going to speak up, do it after the window to be replaced has closed. Or, protect yourself from ire and speak only with your private ballot. Your vote is not public record, and your party will not see your vote (in theory)! See official rules and dates.
John Kasich’s name was floated around, this is a good non-divisive choice (despite Kasich’s plea, which he was all be required to make lest he face Trump’s wrath, this is still true). Likewise, Bernie Sanders is a good alternative for upset electors in both Republican and Democratic won states who voted “against the Establishment” (but not “for Trump”). In other words, the goal would be to vote against the leader you saw unfit for the office you are electing, but to vote for a candidate that won’t immediately send one of the two major parties and their 60,000,000 into a tailspin. Here, we must also keep in mind that the House is likely to go for Clinton or Trump as well, so the electors have another thing to consider here.
Choices like Sanders aside, Republicans won the November 8th advisory vote in terms of customs pertaining to winner-take-all states. Thus, it is my opinion the most justified vote is a vote for another Republican, like Kasich (who is less divisive and ran on a message of uniting the country; “that which is in the public interest”).
Another bit of advice is to realize that a different VP can be picked as well. Pence may be a good choice for Donald Trump (as no one is going to impeach Trump with the rather radical Pence in the wings), but while this is good for Trump, your duty is to ask, “is Trump/Pence the best choice for America and her people?” If not, another choice can be made. However, unlike with the President, the VP choice is a top 2 choice. Given this, it would take a lot of organizing between electors to move anyone but Kaine or Pence into the top 2. Thus, switching a vote for VP (and not President) could be a good way to force the country to come together.
On the topic of VPs, there is also nothing stopping the electors for voting in a President Pence or President Kaine. George Washington ran without any serious opposition in 1789 and 1792, in both cases VPs and Presidents weren’t even defined on the tickets, the electors simply made George Washington the President and the runner-up John Adams his VP. In 1792 only two states cast a popular vote and only 28,579 were tallied. If there was ever an election that showed the intentions of the founders in creating an electoral college, these first elections are it. Washington refused to even run for a party, putting America before politics.
With all the above said, in summary, replacing Bush with Gore in 2000 would have caused a panic, but replacing Trump with Clinton in 2016 would likely do much worse.
If “faithless electors” are going to upset the election for the first time in history, in an otherwise untraditional election, it makes sense to either cross-pollinate VPs or to offer America a more centered and less divisive choice for President (Bernie, Kasich, Kaine, and Pence all come to mind). Otherwise, there is wisdom in following tradition… although, if we look to the founders, there is no tradition is kneeling before tyrants (that is kind of what the whole American Revolution was about).
My advice aside, at the end of the day, the old Latin saying sums it up: Caesar non est supra grammaticos, [which can be translated loosely as] Not even the Political Power of Kings is beyond the truth. Here, the truth is that the electors alone get to pick the next American leader.
EXAMPLE: If enough Trump votes go to Kasich and Kaine to deprive Trump of 270 and to give Kaine at least 270, it puts Kasich in the top 3 for the House to pick and makes Kaine the VP. This is arguably a palatable move that gives both rural and citied America representatives in the highest office. It also sends a strong message to future politicians that divisive party politics won’t win the day in America, even if they rouse popular sentiment. Had the founders intended for special interests or a majority to override what is best for the country, they wouldn’t have been so clearly vocal against it.
CAUTION: Pence is Trump’s… Trump card. It deters liberals wanting to remove him from office. Kaine as a Trump VP doesn’t have the same effect, but could be a good mash-up that forces Trump toward the center. However, Clinton / Pence would likely spell trouble. Republicans would certainly move to impeach Clinton (with them controlling both the House and Senate), and this could result in a Pence Presidency and more division. However, Pence has shown himself to fairly Presidential, and certainly he lacks some of the baggage other Candidates do. One must question if there isn’t wisdom in Pence? Alas, i’m only using the 1st here, our electors will be using the much more effect (in this scenario) 12th.
NOTE: Neither candidate broke 50% of the national popular vote. There is, to me, no clear mandate here. Sure, liberals didn’t love Reagan, but the 1984 election was a mandate, the voters spoke, Reagan broke 50% no question, Hamilton electors would have had their hands tied. Same is true for Obama 2008, despite the smaller margins. However, 2016 was not normal and there was no clear win (as Hillary won the national and Trump the state-based popular, both by margins that call into question what exactly America was trying to say), and this is why Hamilton electors should be taking their constitutional responsibility to safeguard the union seriously. Compare 2016 to Bush Vs. Kerry 2004, in that Bush had a popular vote margin similar to what Clinton has over Trump (and Bush won of course!). If this does not speak volumes to how divided the country is and why the electors are important, I don’t know what does.
The 12th Amendment Explained: The Constitution of Dummies.
- Presidential Election Laws
- Presidents Winning Without Popular Vote
- 2016 Presidential Election Map
- Trump’s victory another example of how Electoral College wins are bigger than popular vote ones
- Does my vote count? Understanding the electoral college
- Electoral Vote vs. Popular Vote
- The Electoral College and the Popular Vote
- Presidents Winning Without Popular Vote