What Trump Can Teach Us About Con Law

Episode: Faithless Electors and Wrong Winners

Hosts: Roman Mars & Professor Elizabeth Joh
Release Date: October 8, 2024

Overview

This episode explores the peculiarities and vulnerabilities of the American system for electing the President, with a focus on “faithless electors” and the phenomenon of “wrong winner” elections—cases where the winner of the Electoral College does not align with the national popular vote. Professor Elizabeth Joh guides Roman Mars through the constitutional framework, historical precedents, and recent controversies, illuminating just how idiosyncratic and potentially precarious the US electoral system remains.

Key Discussion Points & Insights

1. The Roots: Electoral College Basics

[05:09 – 09:23]

• When Americans vote for President, they're actually selecting a slate of electors pledged to a party's candidate, not directly picking the President.
• The total number of Electoral College votes (currently 538) is based on the sum of Senators and House Representatives per state, plus three for D.C.
• A majority (270) is required to win.
• The process is inherently indirect; electors, not the general voters, make the binding choice.
• Most states use a winner-take-all system for awarding their electoral votes.

Quote: “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.”
— Elizabeth Joh, 08:21

2. Historic Anomalies and Lack of Constitutional Specifics

[09:23 – 11:43]

• The Constitution provides only sparse guidance for the process, leaving most details (like how electors are picked or required to vote) to the states.
• Originally, state legislatures—not voters—often picked electors.

Quote: “The words ‘popular vote’ aren’t even in the Constitution. I want to repeat that—our Constitution has no popular vote requirement at all.”
— Elizabeth Joh, 10:40

3. The Problem of “Wrong Winners”

[11:43 – 15:14]

• Several recent elections (notably 2000 and 2016) featured winners who lost the popular vote but won the presidency via the Electoral College.
• These incidents are sometimes called "Electoral College misfires" or “wrong winner elections”.
• The American Bar Association labeled the Electoral College “archaic, undemocratic, complex, ambiguous, indirect, and dangerous” in 1967.

Quote: “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.”
— Elizabeth Joh, 13:34

4. Faithless Electors: The Exception to the Rule

[15:14 – 19:01]

• A “faithless elector” is one who does not vote for their party’s nominated candidate, defying their pledge or state law.
• 32 states and D.C. require electors by law to vote for the party’s candidate; only 15 have any punitive provisions (usually mild).

Quote: “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…15 states back up that requirement with some kind of punishment, and it's not that severe.”
— Elizabeth Joh, 15:54

5. The Supreme Court and Chiafalo v. Washington

[16:39 – 18:54]

• The 2020 Chiafalo v. Washington and companion Colorado case clarified that states can legally bind or punish faithless electors.
• Despite that, in 2016, seven electors successfully voted differently from their party, the highest since 1836.

Quote: “After the Chiafalo case, it is constitutional for states to punish faithless electors. But...most states don’t punish faithless electors.”
— Elizabeth Joh, 18:54

6. Potential for Crisis and Calls for Reform

[19:01 – 22:51]

• So far, faithless electors have never changed an election outcome, but the system’s fragility is notable.
• Proposals for reform include abolishing the Electoral College or states joining the National Popular Vote Initiative (an interstate compact to award electoral votes to the national popular winner)—but real change remains elusive.

Quote: “The faithless elector problem is worth talking about because it shows us what a ramshackle process our presidential election system is.”
— Elizabeth Joh, 19:01

7. Nebraska’s “Blue Dot”: Electoral Vote Splitting and Contemporary Controversy

[23:29 – 26:58]

• Only Maine and Nebraska split their electoral votes by congressional district; elsewhere, it’s winner-take-all.
• Nebraska’s “blue dot”—the Omaha-based 2nd district—has periodically given one Democratic electoral vote despite the state being largely Republican.
• In 2024, Republicans attempted (but failed) to push Nebraska to switch to winner-take-all to potentially block a path for Democrats to reach 270 electoral votes via the Blue Dot. The move was stymied by a single state senator’s refusal.

Quote: “If Nebraska had become a winner-take-all state...there is a distinct possibility of a 269, 269 tie...Did the Republican attempts in Nebraska feel like partisan dirty tricks? Yes. Would it have been constitutional also? Yes.”
— Elizabeth Joh, 26:18

8. Historical and Structural Legacies

[27:24 – 32:42]

• Much of the system’s oddities (including the number of electors and House seats) are historical accidents or legislative choices, not constitutional commandments.
• The imbalance gives less-populated states disproportionate influence.
• The potential for mischief by electors or state politicians is built into the system, with only limited checks.

Quote: “The crazy thing about faithless electors is we have a system which doesn't prevent disastrous scenarios.”
— Elizabeth Joh, 30:32

Memorable Moments & Notable Quotes

• On historical “faithless” votes:

  “Turner is what we call a faithless elector...‘I have fulfilled my obligations to the people of Alabama. I’m talking about the white people.’”
  — Elizabeth Joh, 02:45

• On contemporary anxiety about the system:

  “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.”
  — Roman Mars, 29:39

• On how odd it is:

  “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...”
  — Elizabeth Joh, 32:42

Timestamps for Key Segments

• Electoral College Mechanics Explained: 05:09 – 09:23
• Constitutional Gaps & State Roles: 09:23 – 10:40
• Popular Vote vs. Electoral College & “Wrong Winners”: 11:43 – 15:14
• Faithless Electors & State Laws: 15:14 – 19:01
• Supreme Court Decision—Chiafalo (Faithless Electors): 16:39 – 18:54
• Faithless elector risks & system vulnerability: 19:01 – 20:13
• Electoral College Reform efforts: 20:45 – 22:51
• Nebraska/Maine’s split system and recent controversy: 23:29 – 26:58
• Historical legacies and current risks: 27:24 – 32:42

Conclusion

Professor Joh and Roman Mars paint a picture of an American electoral system that is deeply rooted in history, fraught with undemocratic quirks, and surprisingly susceptible to both minor and major crisis points. The episode drives home just how little is actually specified in the Constitution, how much is left up to tradition and state action, and why persistent concerns about fairness and representativeness won’t go away without major structural reform.

For more episodes and resources:
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Music by Doomtree Records.