Choosing Electors for the Electoral College is State Business

November 13, 2020

I tend to think the current “election” fiasco is much ado about nothing. To the best of my knowledge there is nothing in the U.S. Constitution that requires a “popular” vote for President. Instead the Constitution says in Article II:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Constitution does not require a popular vote for President. It does require that States choose Electors in the manner directed by the State Legislatures.

Last summer a case came before the Supreme Court. Some Electors from the State of Washington apparently did not vote as the Washington legislature had directed them and they were fined. The Supreme Court answered that it was fine for the Washington legislature to tell them for whom to vote and to fine them:

CHIAFALO ET AL. v. WASHINGTON CERTIORARI TO THE SUPREME COURT OF WASHINGTON No. 19–465. Argued May 13, 2020—Decided July 6, 2020
When Americans cast ballots for presidential candidates, their votes actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns. The States have devised mechanisms to ensure that the electors they appoint vote for the presidential candidate their citizens have preferred. With two partial exceptions, every State appoints a slate of electors selected by the political party whose candidate has won the State’s popular vote. Most States also compel electors to pledge to support the nominee of that party. Relevant here, 15 States back up their pledge laws with some kind of sanction. Almost all of these States immediately remove a so-called “faithless elector” from his position, substituting an alternate whose vote the State reports instead. A few States impose a monetary fine on any elector who flouts his pledge. Three Washington electors, Peter Chiafalo, Levi Guerra, and Esther John (the Electors), violated their pledges to support Hillary Clinton in the 2016 presidential election. In response, the State fined the Electors $1,000 apiece for breaking their pledges to support the same candidate its voters had. The Electors challenged their fines in state court, arguing that the Constitution gives members of the Electoral College the right to vote however they please. The Washington Superior Court rejected that claim, and the State Supreme Court affirmed, relying on Ray v. Blair, 343 U. S. 214. In Ray, this Court upheld a pledge requirement—though one without a penalty to back it up. Ray held that pledges were consistent with the Constitution’s text and our Nation’s history, id., at 225–230; but it reserved the question whether a State can enforce that requirement through legal sanctions.

Held: A State may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President. Pp. 8–18.(a) Article II, §1 gives the States the authority to appoint electors “in such Manner as the Legislature thereof may direct.” This Court has described that clause as “conveying the broadest power of determination” over who becomes an elector.

The Court quoted the Constitution:

Article II, §1, cl. 2 says: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Court also cited the Twelfth Amendment as evidence that Electors were to vote as directed by their states. Here is the text of the Twelfth Amendment:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;
The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.[a]

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.[1]
(Note: This provision was superseded by Sections 1 and 3 of the Twentieth Amendment in 1933.)

The twelfth Amendment basically required votes for Vice-President and President be specified. The idea was to avoid having a President from one party and Vice-President from another.

Here is how the process is supposed to work:

Article II, Section 1, Clause 2 of the Constitution, empowers each state legislature to determine the manner by which the state’s electors are chosen. Following the national presidential election day (on the first Tuesday after November 1),[14] each state counts its popular votes according to its laws to select the electors.
In 48 states and Washington, D.C., the winner of the plurality of the statewide vote receives all of that state’s electors;[15] in Maine and Nebraska, two electors are assigned in this manner and the remaining electors are allocated based on the plurality of votes in each congressional district.[16] States generally require electors to pledge to vote for that state’s winner; to avoid faithless electors, most states have adopted various laws to enforce the electors’ pledge.[17]

The electors of each state meet in their respective state capital on the first Monday after the second Wednesday of December to cast their votes.[15] The results are counted by Congress, where they are tabulated in the first week of January before a joint meeting of the Senate and House of Representatives, presided over by the vice president, as president of the Senate.[15][18] Should a majority of votes not be cast for a candidate, a contingent election takes place: the House turns itself into a presidential election session, where one vote is assigned to each of the fifty states. Similarly, the Senate is responsible for electing the vice president, with each senator having one vote.[19] The elected president and vice president are inaugurated on January 20.

As you can see the Electors are chosen and then they meet in their State capitols on the first Monday after the second Wednesday in December to cast their votes. Those votes are then sent to Congress to be counted in the first week of January. This would mean that elections would not be settled until January and if no candidate had a majority, the question would go to the House of Representatives.

I have come to the conclusion that any issues of election fraud with respect to the office of President of the United States are issues for the Legislatures of the states in which fraud may have taken place. According to the Constitution,

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:….

Nothing was said about the method of appointing the Electors. The State Legislature could choose its Electors via dice, dartboard, drawing from a hat or whatever it deemed fit. It would appear that a State Legislature could also accept fake ballots, if desired.

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