Don’t force electors to vote for Trump or Hillary

Derek Muller

Imagine a place where it’s illegal to vote for anyone but a single presidential candidate this fall.

That place exists in Michigan.

This November, when we go to the polls to cast votes for president and vice president, we are actually voting for a slate of presidential electors who support those candidates. Those electors meet in late December in an assembly known as the Electoral College. And those electors are the ones who actually vote for the president and vice president.

The framers of the Constitution envisioned electors as dispassionate individuals who would deliberate carefully before choosing a president to represent all of us. That worked well when all the electors could easily agree upon George Washington.

But political parties quickly formed and promoted their own preferred slates of presidential electors who would be faithful to each party’s preferred candidate, like John Adams or Thomas Jefferson. Electors could still cast votes for whomever they wanted. But they were highly faithful in casting votes for the candidate they pledged to support.

Despite the usual faithful voting habits of electors, states in the middle of the 20th century began to examine whether they could compel electors to remain faithful to the preferences of voters. Some states required electors to take loyalty pledges before they voted for presidential candidates. The Supreme Court, in a divided opinion in 1952, upheld the constitutionality of a requirement that electors take a pledge to vote for the candidates their party selects for president and vice president. Whether they could be forced to stick to that pledge would be a question left for another day.

Today, most states have laws requiring their electors to pledge to support the candidates named on the ballot. But a few, including Michigan, have gone a step further. It’s actually illegal in Michigan for a presidential elector to vote for anyone except the candidate they pledged to support.

This fall, most Michigan voters will choose between two wildly unpopular candidates, Hillary Clinton or Donald Trump. Whoever gets the most votes in November will win 16 electors pledged to support that candidate in December.

But what happens when those electors meet in December, and something has gone horribly wrong? What if Clinton, currently under active FBI investigation, is indicted? What if Trump, who must take the stand in a civil lawsuit for a trial scheduled to begin Nov. 28, finds himself facing perjury charges — the very matter Clinton’s husband was impeached for? Or if Trump makes a statement so outlandish after Election Day even electors who once supported him find him unfit for office?

In most other states, electors could make an adjustment. They might cast their votes for the vice presidential candidate, or perhaps for a senior party member like Joe Biden or Paul Ryan. In Michigan, however, it’s illegal. Electors who vote for anyone else forfeit their votes, and the remaining electors choose replacements.

Such a system could lead to even more bizarre results. Clinton turns 70 next year; Trump is already 70 years old. In the event either suffers from a major health crisis after the election, presidential electors in other states would probably respond by choosing someone else. That happened in 1872, when Horace Greeley died after Election Day but before the electors met. Electors easily cast their votes for someone other than the dead man named on the ballot. But in Michigan, it would be illegal to vote for anyone except that deceased candidate.

It’s not even clear that Michigan has the power to outlaw the independent judgment of these electors. When the Supreme Court permitted states to force electors to take pledges, it assumed that they could still violate those pledges.

The upcoming election pits two uniquely unpopular candidates who may face potentially disqualifying attributes after Election Day. While their names may appear on the ballot in Michigan this November, that should not be the final choice for electors. Michigan should repeal its law and trust presidential electors to vote for the right candidate in December.

Derek Muller is an associate professor at Pepperdine University School of Law.