The Modern Presidential Game:
The Electoral College

What Could Possibly Go Wrong?

 

The National Popular Vote initiative

  • For a state to join: pass the National Popular Vote Compact Bill
  • to take effect only when states with a total of at least 270 EVs have joined (by July 20) -- then,
  • state electors to be chosen from slate pledged to national plurality winner.
  • Now adopted by 15 states with 196 total EVs, including CA, NY, IL.

Possible problems:

  • There are no official national vote totals.
    • Governors must report popular vote totals on which designations of Electors are based. See relevant U.S. Code.
    • There's still a timing problem: Who goes first? Deadlines for submitting state vote -- that is, for submitting names of Electors -- are the same for all governors. Congress could set an earlier date for popular vote reports.
  • States may withdraw from the compact. (“Myth 9.11.1”)
    • NPV specifies that, if it wishes to alter its Elector choice method, a state must withdraw no less than 6 months before end of current president's term (July 20). But a legislature can't limit a future legislature in this way.
    • It would be "patently unconstitutional" to try to appoint new Electors by new means after Election Day? But this could be done by maintaining a challenge to election outcome on technical grounds (as in Florida 2000)
    • There would be overwhelming political opposition within state? But we’re inherently talking about a state whose plurality is the national vote loser.
    • In violating the NPC Compact, such action would run afoul of the "impairment of contracts" clause? (Silly.)
  • The Constitution (Article I sec. 10 para. 3) forbids compacts between states without the assent of Congress.
    • The good news: at least, this could be done with a majority in each chamber, much easier than amending.

The Electoral Calendar

 

Independent judgment by Electors?

Discussion following Trump election re: Framer intent

  • Hamilton: “talents for low intrigue, and the little arts of popularity”
  • Worries about foreign interference

Baca et al. v. Colorado Department of State (10th Circuit, 2019)

Legitimacy implications: what if "faithless" electors changed an election outcome?

 

Resolving electoral controversies

Election crisis of 1876-77

  • Electoral Commission Act of 1877

Electoral Count Act of 1887: provisions

  • "safe harbor" for Electoral slates whose controversies resolved on time by state's predetermined methods. Refer to The Electoral Calendar
  • In the joint session:
    • any objection must be presented in writing by one member from each chamber
    • no debate on the objection; only a motion to withdraw is in order
    • five-minute rule on individual speeches in the separate session on objection; two hours debate overall; then required to be brought to a vote
    • In case of unresolved disagreement between House and Senate, the Elector slate approved by the governor is to be accepted.

Election crisis of 2000, and application of the ECA

The constitutional problem: the Rules Clause

 

Other possible sources of electoral controversies

A tie election in 2020?

Bad-faith challenges to prevent resolution prior to the electoral joint session

Outside interference and its effects on legitimacy

  • heavy-handed campaign interference; exacerbating polarization
  • sabotage of voter registration databases