I’m going to start a series of posts on constitutional conventions (i.e., customs) in the United States. This topic is part of the article that I’m working on now, and is related to the Noel Canning case that the Supreme Court will hear this month on the Recess Appointment Clause. (Up until recently, norms have governed recess appointments.)
Let’s start with the following question: Under what circumstances, if any, would a presidential elector be justified in not voting for the candidate who won his or her state? There is no doubt that the original understanding was that electors were free to vote their conscience. There is also no doubt that there is a longstanding practice that electors will do no such thing. Every so often an elector will vote for someone else or not vote, but that has never changed the outcome.
Two things to note at the outset. First, electors generally do not vote by secret ballot. If they did, that would make it much easier for them to cross their party. Second, some states have laws that would penalize electors who are faithless, but the constitutionality of these statutes is doubtful–the Supreme Court declined to address that issue in a 1952 case.
If an elector (or group of electors) switched their votes to change the result (or abstained to throw the decision to the House of Representatives), would that be legal? Almost certainly yes. Would that be legitimate? That’s a much harder question. One can think of a few conditions that might justify such an action.
1. The popular vote winner did not win the electoral vote.
Despite the precedents of 2000, 1888, 1876, and 1824, one could argue that electors would be right to vote for the person who won the popular vote.
2. Some derogatory information comes out about the winner between Election Day and the day the electors vote.
“President-elect Smith took bribes in a prior job.” Once sworn in, President Smith could be impeached and removed for this sort of conduct, but that would take a lot of time and energy. Would the electors be justified in short-circuiting this process? Could be. Should they then vote for Smith’s Vice-President or the person Smith defeated (on the theory that the people would never have voted for Smith if they knew he was a crook)?
3. Some serious health issue cripples the winner.
“President-elect Smith has a stroke.” The Twenty Amendment specifies what happens when the President-elect dies (though it’s not clear whether “President-elect” means the winner on Election Day or the person elected formally by the Electoral College), but says nothing about a disability. A disabled President Smith can be temporarily removed under the Twenty-Fifth Amendment. Would electors, though, be right to vote for the Vice-President elect and avoid that issue?
Do other scenarios come to mind?