Today, 538 electors will cast their ballots for President and Vice President of the United States. If all goes as the pundits promise, Donald Trump will receive the 270 electoral votes that he needs to become our next President.
The pundits may be right. No one knows for certain whether any, or certainly, how many, electors will vote their conscience over their pledge. A week ago, based on my own survey of those working with electors (including the group that I helped start, ElectorsTrust.org), I was confident there were at least twenty seriously considering a vote of conscience. A week before that, we knew of just one. That's the right slope for an upset. Many are now reporting that there are many more than 20 who are committed, but I am not close to that count, and cannot now say with confidence how many there really are. What I am confident of is just this: that unless those organizing the electors succeed in convincing them that there is a high probability 37 will vote against their GOP pledge, very few are likely to step forward and face the heat. Christopher Suprun was the first, and an example for others. There are few who will expose themselves to the shameful abuse that he has suffered — unless there's a real chance it would matter.
But regardless of what happens Today, we should remark some points of which we can be certain.
First, never in the history of the Republic has there been this sort of bottom-up, grass roots fight against a presumptive President-elect. Once, in 1836, in the vote for Vice President, Virginia's electors organized opposition to the presumptive nominee, on the grounds that he had an African American lover. That forced the decision to the Senate — which quickly and overwhelmingly affirmed the presumptive nominee. But beyond that one (ignoble) case, there has never been such a campaign to get electors to take seriously their constitutional discretion and vote against the nominee to which they are pledged. This says something about us, this election, and this presumptive President-elect.
What it does not say, however, and second, is "sour grapes." What's been striking about this campaign from the start has been the total absence of Hillary Clinton from the fight. That was probably the right call for her, but it made organizing people more difficult—if only because it seemed to be so impossible. Instead, the strongest motivation for this campaign has come from the events that have occurred since the election — most grotesquely, Mr. Trump's refusal to comply with the Constitution's Foreign Bribery Clause, and most troublingly, the continued revelations about Russian hacking of our elections. These facts give electors a reason, not to second guess the decision voters made, but to weigh their pledge based on the peoples' vote against the serious constitutional and security questions raised by these revelations. In my view, an elector can in good conscience say,
"despite my pledge, I cannot vote for a man who refuses to comply with the requirements of the Constitution's Foreign Bribery Clause,"
"despite my pledge, I cannot vote for a man who has likely and knowingly benefited from foreign involvement in our elections. Or at a minimum, until the facts are known, I must abstain."
These are not obvious conclusions. They are certainly not compelled. But in the incredibly difficult weighing that electors are now called upon to make, they are plainly defensible.
Third, I am happy that we (ElectorsTrust.org) have helped to secure to these electors their freedom to cast a vote of conscience. Many states purport to restrict that constitutional freedom. We've been involved in a number of cases, and will likely be engaged in more, to defend it. Late Friday night, in the 10th Circuit, in a case originally brought by Jason Wesoky, and in which our lawyers helped frame an appeal, we got perfect support for the position that we have been pressing — that electors have a constitutional freedom to vote their conscience.
The case, Baca v. Hinkenlooper, asked the court to enjoin application of laws that purported to restrict the freedom of electors to cast a vote of conscience. The district court refused, and the court of appeals refused as well.
But in the language of the Court's opinion, we struck gold.
The Court made it clear that while the state has plenary authority to determine how electors are selected, the state has no power ultimately to control how electors can vote. The Court distinguished sharply between state power before voting begins, and state power after voting begins. After voting begins, the state had an "unlikely" power to remove an elector, or otherwise try to control how the elector voted. As the Court wrote, "we deem such an attempt by the State unlikely in light of the text of the Twelfth Amendment."
This is a victory. It is the whole theory under which electors have a constitutional discretion to exercise their own judgment. And today, we will be deploying this authority — along with the Supreme Court's decision in Ray v. Blair (1952) — in every state we can in which officials try to negate that constitutional privilege. (Not an inexpensive enterprise, by the way, so if you can help, we'd be grateful. We have committed to returning any funds beyond what we need to cover the costs of this project. So please help if you can.)
This is the 57th time Americans have selected a President. It is astonishing how much in this process is still uncertain. We are so used to the electors acting as cogs in a wheel that it is jarring to imagine them as anything more.
But whether they should be something more or not, today they are, under our Constitution, something more. You pick your metaphor — an emergency brake, a circuit breaker, a fail safe for problems that are unclear during an election. Whatever: they have enormous responsibility that has never needed to be seriously engaged.
This time is different. And while I strongly reject the idea of electors acting as Our Democratic Guardians—they don't, in my view, have the moral right to second guess a judgment that we the people have made—I strongly endorse the view that electors must weigh the facts as they see them, to determine whether they can confirm an election or not.
No doubt, this is more than they bargained for. We owe them a great deal of respect for the burdens they now bear. My only hope is that they can step beyond the world of "party over country" long enough to recognize the responsibility they now hold.
December 19, 2016