Single Point of Failure
Supreme Court opinion highlights potentially fatal election flaw
It’s not the virus that kills per se. It’s the body’s reaction.
In the same way, America’s presidential election system is unlikely to be felled by a frontal assault.
Strong-arm tactics like postponing votes or storming the Capitol won’t succeed in sidelining the will of the people. These approaches are too obvious, too legally problematic, and too politically disfavored.
But in protecting itself against these threats, our system inevitably creates new vulnerabilities. Sometimes, we push the gravest threats into the shadows, where they prove more lethal.
One flaw exposed by a Supreme Court opinion addressing issues with the 2016 election jumps out as particularly startling.
It’s a loophole that, if not closed, could result in a president election being legally stolen.
A little background will help explain what I mean and why this worries me.
Under the Electoral College system, Americans don’t directly elect their presidents and vice presidents.
Instead, when citizens vote for a presidential ticket, they are actually choosing an elector representing that ticket’s political party. Those electors whose party ticket gets the most votes in a particular state then cast that state’s presidential votes in favor of their party candidate.
270 electoral votes secures the presidency. If no one gets to this simple majority, the US Congress resolves the issue with its own process. Far-fetched as it sounds to the modern ear, this has happened three times in American history. Though the last time was 200 years ago.
There is a crucial assumption in this process. And it’s usually in the assumptions underlying something that we find its vulnerabilities.
The Electoral College process assumes electors will do as they are told. If the people of a state vote for a particular party, that party’s electors are relied upon to cast their votes for that party’s ticket. Most states make electors take pledges to cement their commitment.
And electors always keep to their pledges. Which makes sense since the state branch of their party gave them an official appointment to do this one thing.
Except occasionally, electors don’t keep to their pledges. Because humans are unpredictable, non-linear beings stricken with the curses of reason, judgement, and disobedience.
Sometimes, a faithless elector decides to break from the process and cast a vote for someone other than their party’s candidate.
This happened a few times back in 2016.
The popular votes in Washington and Colorado went for Hillary Clinton. But a handful of Democrat electors in those two states recognized that Ms. Clinton was going to lose the election, and therefore that their votes were meaningless.
Instead of casting hollow votes for Clinton as their pledges required, they woke up in the morning and chose chaos. These electors rallied other electors to throw support behind a Republican candidate other than Donald Trump.
They hoped to create a groundswell of electoral pledge-breaking capable of denying Trump a 270-vote majority, which would have thrown the whole election into the House of Representatives for resolution.
It didn’t work. And to boot, the faithless electors were sanctioned by their respective statehouses, absorbing hefty fines and losing their electoral appointments.
Washington’s punished electors appealed, arguing among other things that the plain meaning of the word “vote” imparts them agency and latitude. Their case reached the US Supreme Court in 2020.
Here’s a key excerpt from the Court’s outlining of the issue.
So, the issue of faithless electors and how states respond to them is not new. Electors have previously challenged the right of a state to tell them how to vote. States have cultivated the norm of electors voting faithfully going all the way back to the earliest contested elections.
And in those previous instances, the Supreme Court has relied upon on the broad latitude granted to states in Article II, Section 1 of the US Constitution in how they appoint and handle electors.
States can condition appointments. States can impose pledges. States can remove unfaithful electors. And yes, states can threaten and impose punishments upon electors for breaking their pledges. These are embedded norms which, the Court reasons, fall within the ambit of states to regulate.
The Court ultimately finds in favor of Washington and against the “free will” argument of the electors, holding that:
Among the devices States have long used to achieve their object are pledge laws, designed to impress on electors their role as agents of others. A State follows in the same tradition if, like Washington, it chooses to sanction an elector for breaching his promise. Then too, the State instructs its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.
In other words, electors must keep their pledges. If they don’t, states are permitted to remove them and replace them with someone who will.
This makes sense.
But this isn’t the boundary of the Court’s reasoning, nor the legal boundary of the precedent it establishes.
To reach its opinion, the Court also holds that:
“Article II and the Twelfth Amendment give States broad power over electors, and give electors themselves no rights.”
That’s my emphasis on no rights.
It’s one thing to say that an elector’s exercise of their role is subject to state regulation.
It’s another to say electors have no rights whatsoever in exercising their role. This reduces them to mere implements; stamp-carriers who merely confirm someone else’s will.
So long as that someone is the people of a state, this doesn’t seem problematic. But the will of the people is passing through the statehouse on its way to electors. In positioning states as unlimited authors of electoral behavior, the Court gestures toward an electoral back door left dangerously ajar.
If electors have no rights and states have unlimited latitude in directing electors, there is nothing to prevent a state legislature from removing and replacing electors in order to direct the electoral result it wants, regardless of popular will.
This outcome exposes a loophole which has always existed but is likely to be stress-tested in the currently volatile, norm-breaking context of US presidential politics.
In an effort to kill the virus attacking the norms governing elections, the Supreme Court has highlighted how those norms make elections vulnerable to mischief from state legislatures.
The fever this creates could be worse than the virus itself, and if it comes to pass, it’ll all be perfectly legal.
In prior times, we might shrug off this risk as a stretch of the imagination. We might presume statehouses will do as their citizens want and express and expect.
In the current political context, this is a dangerous assumption.
I have no trouble imagining a scenario where a statehouse doesn’t like the result of a popular vote for president, and decides to direct electors to vote otherwise. There are many states which have already proven they’d rather not listen to their voters.
Contrary to popular culture, the Death Star wasn’t exploded because Luke Skywalker used the force. It happened because its designers built into it a dangerous vulnerability. Ingenious tacticians will find and exploit weaknesses, and they are particularly smitten with single points of failure.
If we want to avoid an explosion of our electoral process, together with the risks to peace and stability which tend to accompany such precarious moments in the life of a nation, it’s important to close this loophole.
Do I think that will happen before November?
No, I do not. But this is on my radar. And now it’s on yours.
Note: this issue caught my attention because I loosely follow Larry Lessig, one of my professors from law school. If you want to learn more about the intricacies of US elections, check out Lessig’s insights on Medium.
TC is an independent writer who focuses on leadership and management, but occasionally comments on legal issues. He is a graduate of Harvard Law School, where he served as senior editor of its National Security Journal.