A nightmare scenario for 2020: A tie that can’t be broken. It’s conceivable.
Computer mouse pads with Secure the Vote logos on a vendor’s table at a July 2018 convention of state secretaries of state in Philadelphia. (Mel Evans/AP)
A 269-to-269 electoral college tie looms! The new House of Representatives can break it in January 2021, with 50 state delegations entitled to one vote each and 26 needed to win. Alas, voters picked 25 GOP-majority delegations, 22 Democratic and three split.
Then each party frantically lobbies the 538 presidential electors, hoping one will switch sides before electoral votes are cast on Dec. 14, thus assuring a 270-vote victory without a struggle in the House.
Lawyers rush to court to “free the electors,” but lower courts reach conflicting conclusions because there is no binding Supreme Court precedent. The justices themselves have no choice but to convene amid the crisis. Trump issues vulgar threats on Twitter. “Pro-democracy” demonstrators occupy Capitol Hill.
Fortunately, the justices have an opportunity right now to spare the country, and themselves, this nightmare.
Two newly filed appeals — Baca v. Colorado Department of State and Chiafalo v. Washington — present the issue of whether the Constitution allows states to fine, replace and otherwise punish presidential electors who violated pledges to vote for the winner of state popular votes, or whether it made the electors free agents.
If they accept the cases soon, the justices can hold arguments and rule by next July, well in advance of the November election.
It’s an age-old question. The framers of the Constitution touted the electoral college as an elite independent body, but it quickly evolved into a partisan one, selected according to political loyalty. This long-standing custom has hardened into a popular-vote-winner-take-all norm applying to each state’s electoral votes (except in Nebraska and Maine, which allocate some by congressional district).
Still, since 1796, some 167 electors have voted, or attempted to vote, for candidates not backed by the voters of their states; generally Congress has counted their votes, in part because “faithless electors” never changed the outcome.
In 1952, the Supreme Court ruled that states could permit parties to bind their own primary candidates for presidential elector to vote for the party’s nominee, but has never resolved the slightly, and crucially, different issue of whether such an obligation could be enforced on the winners in November.
A wonderful thing about this question is that it has no characteristically Republican or Democratic answer — faithless electors can strike either party, and they have.
In 2016, it was Democrats who tried to encourage electors’ latent independence, in a last-ditch effort to get Trump-pledged electors to back the popular vote winner, Hillary Clinton — or at least a third person, to deny any candidate an electoral-vote majority and throw the contest into the House.
In the end, two Trump electors and five pledged to Clinton voted for other people — not enough to alter the result.
However, it would have been a different story in a 269-to-269 tie, or a replay of the 271-to-266 cliffhanger in 2000. Perhaps with that in mind, Washington state and Colorado enforced their bans against faithless electors in 2016, and the electors’ legal appeals ended in conflicting rulings.
The Denver-based U.S. Court of Appeals for the 10th Circuit, by contrast, ruled that a Clinton elector in Colorado who tried to vote for John Kasich had every right to do so.
Electors are federal officials, beyond state control, the 10th Circuit opinion noted; and Alexander Hamilton himself once described them as “capable of analyzing the qualities” of a good president and “acting under circumstances favorable to deliberation.”
The clashing decisions present the Supreme Court with a choice, not between red and blue, but between pragmatism and formalism.
The justices can bless existing state laws, constitutionalizing the rough, but settled, expectations on which those laws rest. Or they can upend laws and expectations, in the name of faithfulness to the framers’ intent.
The country can probably adapt to either result, if it comes well before November; the only thing the court cannot do is wait.
Read more from Charles Lane’s archive, follow him on Twitter or subscribe to his updates on Facebook.
Eric Petersen says
I would take everything that the liberal Charles Lane says with about a pound of salt.
Fascinating food-for-thought, to be sure. Three particular presidential elections in our country’s history had drama similar to what Lane writes about: 1) the 1800 election (wherein Jefferson’s VP, Aaron Burr, attempted to justify his claim to the presidency throughout a legal technicality that Amendment 12 would later clarify); 2) “the corrupt bargain” of 1824 between John Quincy Adams and Andrew Jackson (the latter would get his revenge in their 1828 rematch); and 3) the controversial Election of 1877 that gave the final, disputed 20 electoral votes to Rutherford Hayes over Samuel Tilden.
Stranger things have happened before.