Roman Mars (3:45)

Let's do it. This is what Roman Mars can learn about Con Law, an ongoing series of indeterminate length and sporadic release where we look at faithless electors and wrong winner elections and use them to examine our Constitution like we know never have before. Our music is from Doomtree Records. Our professor and neighbor is Elizabeth Jo, and I'm your fellow student and host, Roman Mars.

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Elizabeth Jo (5:09)

If we're going to talk about faithless electors, we need to talk about the Electoral College. Now, you and I have talked about the Electoral College before, but just briefly, but I think it's worth going into more detail this time. All right, so when you and I will vote in the 2024 presidential election, we'll see the tickets of the political parties on the ballot. Harris Waltz, Trump, Vance, and a couple of third parties. But when we vote, we're not really voting for any presidential candidate. We're actually voting for the presidential electors who are pledged or promised to the candidate of that political party. Most states don't print the names of electors on the ballot, but it's still the electors who actually matter when it comes to electing the President of the United States.

Roman Mars (5:51)

So how does that all work, though? Like in the real world?

Elizabeth Jo (5:54)

Well, Roman, why don't we start out with the Constitution? Why don't you read the relevant part?

Roman Mars (5:58)

Oh, this is my favorite part. Each state shall appoint in such manner as the legislature thereof may direct a number of electors equal to the number of senators and representatives to which the state may be entitled in the Congress.

Elizabeth Jo (6:14)

Now, it's Short. But what this means is that under the Constitution, each state receives a number of electors that are set by how many senators each state has. That's two each. And how many House members it has, anywhere from 1 to 52. And thanks to the 23rd Amendment, the District of Columbia also has three electoral votes, even though it's not a state. In total, there are 538 possible electoral votes. And so to be president, you have to secure at least 270 electoral college votes. The important part is that in the American system, the voters only indirectly vote for the president and vice President, not directly. Instead, what we do at the polls or with our mail in ballots is vote for a slate of electors that are pledged to a particular presidential candidate.

Roman Mars (7:04)

And so what does it mean that the electors are chosen by the voters?

Elizabeth Jo (7:08)

Well, in every state, each political party nominates a slate or group of electors that are equal to the number of electoral votes in the state. I know this is dry, but it's worth understanding. So now, which party's electors are chosen depends on which party receives the most votes in the state. And that's where voters like you and I come in. When we vote for president or vice president, we're voting for a party's slate of electors. And those electors are supposed to follow what the voters have decided. So if a majority of Californians vote for Harris and Waltz, let's say, then they have actually selected the 54 Democratic slate of electors, not Harris and Waltz directly. And it's actually more complicated than that, because in almost every state, the electoral votes are awarded to presidential candidates in a winner take all system. And that means that even if there's only a bare majority of the voters in a state who vote for one candidate in a winner take all system, that means that the presidential candidate will receive all of the state's electoral votes. Now, Roman, can you name any electors in the state of California, past or present?

Roman Mars (8:18)

I can't. Yeah. Yeah. No, I can't.

Elizabeth Jo (8:21)

And that's the usual response. That is what is so weird about our system. Electors generally don't get any individual attention at all. But electors in every single state are crucial to the process of electing a president. And in fact, our process is so strange that we usually talk about the electoral votes as having been awarded to the winning presidential candidate, as if a machine did this instead of human beings. And election day is just the beginning of the process of electing the president. On December 17, 2024, that's when the real action happens. There will be a meeting of the Electors in each state. And it's in that meeting that the electors officially cast their ballots for President and Vice President and record it. And then after the state electors meet on January 6, 2025, Congress will meet in a joint session to count those electoral votes. And assuming all of that goes smoothly, the new president elect becomes President of the United States on January 20, 2025.

Roman Mars (9:23)

But the thing I read to you only says the number of electors. It doesn't actually outline this whole process. Is this whole process required? Is it like, actually spelled out in the Constitution?

Elizabeth Jo (9:32)

Well, surprisingly, a lot less than you would think. The Constitution does require that we have electors who will vote for the President. And the Constitution also requires that the President is the person who wins the majority of votes from the Electoral College. And the Constitution also spells out what happens if there's no majority winner. The House votes on the top three candidates who receive the most votes. But there's so much about electing an American president that the Constitution says nothing about. Remember that Article 2 says each state shall appoint a number of electors that are equal to the representation in Congress. And that's kind of it. There are a bunch of unanswered questions here, such as who gets to be an elector. Well, that's totally up to the states. And states vary in how electors are picked. You don't need any special qualifications. Usually the political party nominates its electors. You could be an elected official, you could be a celebrity, you could be an ordinary person. Doesn't matter.

Roman Mars (10:32)

So if they can be anyone and they are actually a human, why are they compelled to follow the popular vote?

Elizabeth Jo (10:40)

Well, not because the Constitution tells them to do it. And in fact, the words popular vote aren't even in the Constitution. I want to repeat that our Constitution has no popular vote requirement at all. Now, for more than 150 years, the states have expected that their electors and their electoral votes will be determined by the popular vote, by voters like you and me. But before that, state legislatures, not voters, generally picked the electors. And that meant that the majority party in any state's legislature used to pick the slate of its own choice for the Electoral College. It turns out that even our not totally direct system of electing the President of the United States isn't even constitutionally required. It's that strange relationship between the popular vote and the Electoral College results that leads to another kind of very American problem. Roman, was the 2020 presidential election a close one or not? What do you think?

Roman Mars (11:43)

Well, okay, I know that the popular vote differential, if you took the entire United states was something like 7 million people. More people voted for Biden than for Trump, but the Electoral College was much closer.

Elizabeth Jo (11:59)

That's right. So how you measure the margin of victory kind of depends. So you're right about the popular vote. If we think about the entire country, how many people voted in the election? Biden beat Trump by about 7 million votes. That's a really big margin, but that's not the right measure, constitutionally speaking. So if you look at the states that were critical to Biden's Electoral College win, you have a very different perspective. The three critical states for Biden in 2020 were Arizona, Georgia, and Wisconsin. And Biden won the Electoral College votes in those three states by less than 45,000 votes. Remember, those three states, like almost every other state, award all of their Electoral College votes to its winning presidential candidate, no matter how small the margin of victory. And that leads us to a very big problem when the popular vote and the Electoral College vote don't match. In other words, sometimes you can have a situation where a presidential candidate loses the popular vote but wins the Electoral College vote. And since 1992, Republican presidential candidates have won the popular vote exactly once. That was in 2004, when George W. Bush won the popular vote and the Electoral College vote, but Trump didn't win the popular vote in 2016.

Roman Mars (13:20)

I mean, if this is the system we've always had. I mean, I'm critical of this system, but if this is the system we've always had, why does it matter if there's a difference? You're only really counting lecturers. So therefore, that's just the settled law.

Elizabeth Jo (13:34)

Well, for most of our modern presidential history, we've elected presidents who were chosen by the majority of voters. And anytime a president wins the Electoral College vote but loses the popular vote, it's constitutional. But it doesn't seem to meet our expectations in a modern democracy. And in fact, it's a result like the 2016 election that leads to the criticism that the Electoral College isn't just antiquated, it's undemocratic. And in fact, people who study Electoral College have a name for what happens when the popular vote and the Electoral College results don't match. Some people call these Electoral College misfires or wrong winner elections. Why? Because we end up with a president who is elected with fewer popular votes than his or her own opponent. And that's why in 1967, the American Bar association had a study, and they issued a report, and they called the way that we elect a president as archaic undemocratic. Complex, ambiguous, indirect, and dangerous. Now, our current system also explains why some states receive an enormous amount of attention from the candidates, like Arizona, Georgia, Michigan, Pennsylvania and Wisconsin. And other states don't get any attention at all. And that's because they're reliably Democratic or Republican states. And because there's a winner take all system, the presidential candidates tend to ignore those states. And then there's the problem of W F Turner voting for Judge Jones for president in 1956, who was not on.

Roman Mars (15:10)

The ballot at all. So was that constitutional? Was that allowed at all?

Elizabeth Jo (15:14)

Well, the answer is that it kind of depends. The Constitution specifies that the electors in each state shall meet and vote for president and Vice President. It also says that the states shall appoint the electors, and that's about it. The Constitution doesn't specify how electors should vote. Now, today, the states expect that their electors will pledge to vote for their party's candidate if their candidate wins the popular vote in the state. But if a state elector decides to go their own way, we call that person a faithless elector.

Roman Mars (15:46)

But if they are a faithless elector, can the state remove them? Can they force them to vote? Is there something that they can do?

Elizabeth Jo (15:54)

Well, most of the states try to force their electors to vote a certain way, but surprisingly, not all of them do. In 32 states and the District of Columbia, there are laws that require the state's electors to vote for their party's presidential candidate and not for somebody else.

Roman Mars (16:11)

But what if you thumb your nose at that and just do whatever you want anyway?

Elizabeth Jo (16:14)

Well, 15 states, just 15 states back up that requirement with some kind of punishment, and it's not that severe. Almost all of them just remove the faithless elector and then swap in a faithful elector, and a couple of states go further and impose a monetary fine on the faithless elector.

Roman Mars (16:32)

But since the Constitution doesn't specify how the electors are supposed to behave, is it constitutional to actually punish them for that?

Elizabeth Jo (16:39)

Well, until 2020, the answer wasn't clear. And that was when the Supreme Court decided the case of Chiafalo versus the State of Washington. So let's talk about that. Yes, Chiafalo is really two cases considered together. One is from Washington and the other one's from Colorado. In the Washington case, Peter Ciaofolo and two other electors for the Democratic Party in Washington state asked a judge to block the law that allowed Washington to fine or punish a faithless electoral. Why? Because they didn't want to vote for Hillary Clinton in the 2016 election. They wanted to go their own way. Now, in the Colorado case, a Democratic elector was removed from his position because he didn't want to vote for Clinton either. He wanted to go his own way. All of these challengers argued what you've pointed out, that there's nothing in the Constitution that requires them to vote for their party's chosen candidate. Their argument essentially is, look, the Constitution lets us be free agents. We can vote for whoever we want. But Justice Kagan, who wrote the opinion for the Supreme Court in 2020, said, first of all, look, the Constitution is bare bones about electors. Those are her words. And she discussed what we've talked about here, that the Constitution only has a few things that it says about the electoral college process. The words of the Constitution aren't that helpful. How can we fill in the blanks here? The Supreme Court says, let's take a look at our historical practices in Chiafilo. The Supreme Court said that for most of our history, we've assumed that presidential electors follow the choices of their party for candidate, even though there have been faithless electors. The Supreme Court pointed out in Chiofolo that there have been only 180 faithless electors out of over 23,000 votes cast for a president or vice president, just 1/2 of 1% of the total. So can states punish faithless electors? Even though the Constitution doesn't say too much about it, the Supreme Court in Chiafa says, yes, they can. So after the Chiafalo case, it is constitutional for states to punish faithless electors. But you might remember what I just said. The reality is that most states don't punish faithless electors.

Roman Mars (18:54)

Yeah, Yeah. I mean, so if it's only 1/2 of 1% of the time, is it a real problem in the end? Most of the time?

Elizabeth Jo (19:01)

Well, so far, faithless electors haven't actually been a practical problem. No faithless elector has yet changed the outcome of any presidential election. But in 2016, to return to that election again, 10 electors tried to be faithless. They cast ballots for someone else other than their party's candidate, and seven were successful. And this was the largest number of faithless electors since 1836. Remember that states can require by law that their electors pledge to vote for their party's candidate, and they're even allowed to punish people who are faithless electors. But not every state even requires electors to be faithful, and only a small number of states bother to punish electors for being faithless. The reason the faithless elector problem is worth talking about is because it shows us what a ramshackle process our presidential election system is. The Constitution doesn't actually explain a lot of why things work the way they do. Some of it is state preferences, some of it's just historical practices, and some of it is built on shared norms. And that means that a lot of this could change for better or worse, if the states wanted it to change.

Roman Mars (20:13)

And the trend is not looking good.

Elizabeth Jo (20:16)

The trend is not looking good.

Roman Mars (20:17)

There were seven in 2016 and almost zero every election before.

Elizabeth Jo (20:22)

Yeah. So there is a kind of breakdown of what we expect people to do, and we've seen that in a lot of institutions. So the faithless elector problem is of those things where it would be better if we didn't have to worry about it, but it's at least worth spending some time on why it's a potential problem.

Roman Mars (20:38)

So if this is the trend and it's worrying, and it would be simpler just to do without it, what could be done?

Elizabeth Jo (20:45)

Well, in terms of the Electoral College, there have been hundreds of proposals over the years to try and do something about the Electoral College. And the crazy way we actually only indirectly, and it's not even really required that we vote the way we do. The easiest solution would, of course, be to abolish the Electoral College. It's the simplest solution, but of course, it's also the hardest solution, because then we'd need to amend the Constitution. It's definitely been proposed lots of times, although in recent years, there hasn't been too much interest in changing the Constitution. But because states have such a big role, states could change how to count electoral votes. You could have a winner take all system everywhere. You could have a proportional system maybe, which would allocate votes according to the proportion of the popular vote. And you could have lots of different ways that we would just change the way that we actually count the Electoral College votes. Those are the important things in any presidential election. There is something called the National Popular Vote Initiative, and this is a campaign that's been going on for a while to try and elect the President through the popular vote. The initiative is an agreement among the states. The agreement would mean that each state agrees to award their Electoral College votes to the candidate who wins the most votes nationwide. That would be a commitment no matter what the popular vote was in any particular states. It's an idea, but the idea hasn't caught on that much. There are only about 10 states that have joined the agreement so far. So that's not enough to make a big change.

Roman Mars (22:20)

Hmm. And if anyone really made those changes, there would be just a flurry of lawsuits. I mean, I can't imagine it would go smoothly.

Elizabeth Jo (22:28)

I assume so, yeah. Yeah, yeah. But if you think about it, you know, if you peel away the layers, the way we elect a president is pretty strange. I mean, some of it is just because we've always done it that way. And part of it is just people have a hard time understanding, well, how is it that my vote counts here? And it does. I don't want to. You know, we absolutely want to encourage people to vote, but it doesn't count exactly in the way that you might think.

Roman Mars (22:51)

Yeah, yeah.

Elizabeth Jo (22:56)

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Roman Mars (23:29)

So how does this relate to Nebraska? You mentioned Nebraska earlier.

Elizabeth Jo (23:32)

All right, so remember that in most states, when a presidential candidate wins the popular vote, they win all of the state's electoral votes. It's called the winner take all or the general ticket system. But not in Maine and Nebraska. So in those two states, when the people vote in those states, their votes are kind of like this. First on a statewide basis where the winning candidate wins two electoral votes. And then in each congressional district in the state, the electoral vote goes to the candidate who won that particular district. That's two in Maine and three in Nebraska. And so what that means is that it's possible for Maine and Nebraska to split their electoral college votes. And it's definitely happened before.

Roman Mars (24:17)

Okay, when did that happen? And do people care when that happens?

Elizabeth Jo (24:21)

Well, I mean, it's worth noting just because it's so unusual. In 2008, Nebraska had a split vote. They split between McCain and Obama. And then in 2016, Maine had a split vote between Clinton and Trump. So it definitely occurs because of the strange system in those two states. The reason why I want to talk about Nebraska is because of a recent controversy that happened in September.

Roman Mars (24:44)

Okay, so what was that controversy?

Elizabeth Jo (24:46)

Well, Nebraska has this strange split electoral college possibility. And there's one district in Nebraska, it's sometimes called Nebraska's blue dot. And that's because Nebraska's 2nd congressional district has given its one electoral vote to Democratic candidates in recent elections. Now, one way that Kamala Harris could reach 270 votes is if she could win the battleground states of Pennsylvania, Michigan, and Wisconsin, plus the blue dot of Nebraska. I see. And so with that one very likely Democratic district in Nebraska, this is one path for her to get to the White House. Harris could become president even if she lost all of the other battleground states, as long as she wins Pennsylvania, Michigan, Wisconsin, plus the blue dot. And that's why in September, Trump and his allies tried almost successfully to persuade the governor of Nebraska to call a special session to change how the state awards its electoral votes. Except you need a supermajority in Nebraska to do that, and that would need the support of one crucial state senator. His name was Mike McDonnell. But on September 23rd, McDonnell announced that he wouldn't support the change. He said, it's clear to me right now, 43 days from election Day is not the moment to make this change.

Roman Mars (26:10)

So if it wasn't for this person, what would have happened if they actually changed the rules and made it so that Nebraska was winner take all?

Elizabeth Jo (26:18)

Well, so there's this one strange possibility. If Nebraska had become a winner take all state, and Harris only won the battleground states of Pennsylvania, Michigan and Wisconsin, there is a distinct possibility of a 269, 269 tie Trump, which would then throw the election to the House of Representatives, which is controlled by the Republicans. And in that possibility, the House would decide on the President, with each state getting one vote. Did the Republicans attempts in Nebraska feel like partisan dirty tricks? Yes. Would it have been constitutional also? Yes. Wow.

Roman Mars (26:58)

Oh, my God. There just shouldn't be rules that allow for this type of shenanigans. It's just like people vote and that's it. And like all this stuff set up historically because the process of counting votes back when the nation was being formed, was just impossible to count individual votes. Is that correct? This is all put in place because reliably getting someone's vote is really difficult.

Elizabeth Jo (27:24)

Well, yeah. And also a very different conception of who should be making decisions. I mean, American society is totally different. It's an agrarian society. Illiteracy is pretty common. You know, transportation and communication is nothing even close to what we live in today. Not everybody had the right to vote, period. Yeah, political parties, like the way we have them now, didn't exist. And so you can imagine a system in which the state legislatures really are trusted with this process, this very important process. But that is a very different world. And, you know, so many things about the country have changed. And the Constitution has sometimes adapted to that. It seems weird that we vote for President of the United States using this sort of antiquated set of assumptions. It also so happens that one party which is clearly advantaged by the electoral college process by relying on these less populated states to have a powerful role. They have no interest in changing the process at all.

Roman Mars (28:25)

Yeah, totally. Because the whole setup of the number of electors relating to the number of senators and representatives is nonsense from the beginning, in my opinion.

Elizabeth Jo (28:35)

Well, there's that. And then also here's the non constitutional part of it as well. Why do we have 538? Well, that's not part of the Constitution. That's because we've set the number of House Representatives at 435 since 1929. We've never changed it. We could have a different system in which maybe Californians have a bigger say or Texans have a bigger say instead of being dwarfed or we get ignored as Californians. Right. I mean, the presidential candidates tend not to come here too much, except for fundraising.

Roman Mars (29:05)

Yeah, yeah, yeah, that's right. That's right. Yeah. You could have. The House of Representatives could be as big as you want it to be if you just decided.

Elizabeth Jo (29:13)

I mean, that definitely would have other knock on effects. Like maybe we would get even less done if we had more people. But in terms of the electoral college, it might make things more fair and representative.

Roman Mars (29:23)

Yeah, for sure. Because it's a weird artifact that my vote is worth less than a person in Wyoming. That's annoying.

Elizabeth Jo (29:32)

It's very annoying. And it's hard to think of a comparable western democracy that does anything like this.

Roman Mars (29:39)

Yeah, it's just amazing how close that they got. Because the system is so flawed that one person can be the standard bearer on the wall for some kind of fairness in the system. It's crazy that it's down to one person like that.

Elizabeth Jo (29:53)

Exactly right. And even in our system we could imagine a neutral way in which a state like Nebraska could say it's time to shift the way we count electoral votes, but not less than two months before election day in this very partisan way.

Roman Mars (30:08)

I mean, luckily he had that to rest on and rely on. And that seems reasonable versus anything else, which is like every other type of motivation would be called into question. How proximal that sort of decision would be made to the actual election is just one that you can hopefully everyone can kind of understand without him getting death threats or something like that.

Elizabeth Jo (30:32)

Right. You know, one thing I forgot to mention is like, you know, if you think about the process, the crazy thing about faithless electors is we have a system which doesn't prevent disastrous scenarios. Right. I mean, you can imagine something where a bunch of electors around the country decide we're not going to do what we're supposed to do. And there's really very little to. To stop that from happening. And of course, a lot of people think, well, of course it's never happened, and that's a silly scenario. But if you think that somehow the states or that the Constitution has set up a structure to make sure this kind of undemocratic disaster couldn't take place, that just seems wrong. And that should make us feel kind of uncomfortable.

Roman Mars (31:15)

It makes me uncomfortable. Oh, God.

Elizabeth Jo (31:21)

Because it's only, you know, even the 15 states that fine faithless electors, they find them, like $1,000. That's it.

Roman Mars (31:28)

Right. So these faithless, like in 2016, were they. Were they voting for Trump or were they voting for Bernie?

Elizabeth Jo (31:36)

The Washington ones were. They had this crazy thing. They were going to vote for Colin Powell and then they were going to inspire others to vote for Colin Powell. I'm not sure how that campaign was going to roll out. And then the Colorado guy voted for Kasich. Okay, so actually, 2016 is a good example of what if a bunch of faithless electors get together and have a crazy scheme where they decide we'll elect somebody else? There's nothing in the Constitution that says we've got to look at the true motivations of electors or somehow we can now override the entire Electoral College vote because something went wrong. There's no do over provision in the Constitution. Right.

Roman Mars (32:18)

That's alarming.

Elizabeth Jo (32:20)

It is. It is.

Roman Mars (32:21)

I mean, a bunch of people got together and kind of overthrew Biden. It's not impossible to imagine.

Elizabeth Jo (32:27)

Exactly right. Exactly right. And so you can absolutely imagine a crazy scheme because, you know, basically the past almost decade now has been us looking at scenarios, thinking, wow, that actually happened.

Roman Mars (32:40)

Yeah, yeah.

Elizabeth Jo (32:42)

And, you know, the whole process is set up in a way. I mean, look, you and I, we have no idea who our electors are. Right. We just don't. And yet they're so critical. And that seems bizarre that we have a general kind of elementary school understanding like we have to vote, but then why and what happens? And who are these people who are casting the actual votes on our behalf? And it seems crazy to me.

Roman Mars (33:03)

Yeah, it would be an interesting exercise to figure out how to become an elector.

Elizabeth Jo (33:08)

Maybe we should do that next.

Roman Mars (33:09)

Yeah, maybe we should figure that out. Our next project together. This is fun. Thank you, Elizabeth. I appreciate it.

Elizabeth Jo (33:15)

Thanks, Ramo.

Roman Mars (33:18)

This show is produced by Elizabeth, Jo Isabel angel and me, Roman Mars. It's mixed by Hazik Ben Ahmad Fareed. Our executive producer is Kathy Tu. You can find us online@learnconlaw.com all the music and what Roman Mars can learn about Con Law is provided by Doomtree Records, the Midwest hip hop collective. You can find out more about Doomtree Records, get Merch and learn about who's on tour@doomtree.net we are part of the Stitcher and SiriusXM podcast family.

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