Who decides when no one can
decide?
(https://filmdaily.co/news/electoral-map-memes/)
While the debate over the relevance of the electoral college is a hot topic, it’s not one that impacts our current election. We are stuck with the system we have, at least for this presidential election. All states but two are a winner take all format. What this means is if the popular vote of a state goes to a candidate, all of the electoral votes also go to that candidate, regardless of the percentage won in the popular vote. A close finish is not uncommon, nor is a recount when the race is a close one. But what does that look like weeks after November 4th when everything is supposed to be settled?
The election is done but no one has conceded a loss. Lawsuits have been filed alleging voter fraud, that observers were not allowed to view the processes, that deadlines were illegally extended, that counts were stopped and others continued [1]. This process continues and now here we are on December 14th 2020. It’s the big day. The day the electoral college is supposed to vote their state’s results [2]. Luckily for the American people, in July of this year a case was decided in the Supreme Court - Chiafalo v. Washington [3] which decided that “faithless electors” could face penalties. “Faithless electors” are electors which cast their states electoral votes against the wishes of their state. For example, Utah had 58% of the popular vote for Trump but if our 6 electors decided to vote for Kayne West, they could be held legally liable, which didn’t used to be the case.
This is helpful if a state isn’t being contested, but what about a state that is still involved in a lawsuit over results? If the results are still being contested, what happens? Many states have outlined a process to decide what happens, which leaves the decision to Congress [4]. It’s largely up to the individual members of the state’s congress to decide how to submit their electoral votes at that point. They can consider a variety of aspects including the popular vote, the current litigation, and their personal viewpoints.
Q - What would be the best choice if you were in state congress
and got to decide what happened your state electoral college votes and why would
you choose that? (Some options might be to go with the current popular vote
standings, ask the courts to decide the next steps, delay a decision until all
pending litigation is completed, etc)
Additional, interesting reading for anyone curious about the
process:
https://guides.loc.gov/federalist-papers/full-text#TheFederalistPapers-68
https://www.latimes.com/politics/story/2020-07-06/supreme-court-electoral-college-states-voters
I would vote for the candidate who had the clearest claim to a legitimate victory, and the answer to that would be who had the majority of popular votes in that state. That might seem obvious but as we’ve all seen in the news Trump’s lawsuits and attacks on mail-in voting have made this difficult to determine in some states. So, I would look to the decision that the courts make around each claim. Although the judicial branch doesn’t want to be looked to for determine the political question of who the next president should be, they will investigate the facts and issue opinions that State Reps should use to identify which candidate held the majority. If the courts don’t/can’t reach a decision before December 14th it will get even more complicated, and if that happened I would want to delay voting until the courts had decided.
ReplyDeleteVicky...assuming Dec. 14 comes and goes without a court decision on a legal challenge to a state recount does the incumbent President remain in office?
DeleteNo, he shouldn't. The lawsuits may have been filed but they are just accusations at this point. So I would argue that if Trump didn't receive the support he needed in court by Dec. 14th then the election results should stand.
DeleteIt's pretty simple to me...I'd vote for the candidate who got the most votes in my state. The greatest threat to our republic, as Alexis de Tocqueville wrote, is the "Tyranny of the Majority." It is this tyranny that the electoral college is designed to prevent. That means sometimes the person who gets the most popular votes loses the election. That's a feature, not a bug. Or, as James Madison put it in Federalist 51, "It is of great importance in a republic, not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part." This is the beauty of the electoral college.
ReplyDeleteMarlowe...what if you are a legislator in Georgia and there is a court challenge about the legality of the counting process that is still unresolved on inauguration day in January. Does the incumbent president remain in office until the lawsuit is resolved, including all appeals?
DeleteIf it did come down to this, I would give the state win to the candidate that received the most votes in the state. Nevertheless, there are lawsuits against the mail-in-voting or voter fraud. At that point, I feel like we would need to investigate the claims, and we would need verify that the complaint is a legitimate reason for the lack of votes for a certain candidate. Therefore, it would turn to the courts to review the case, and we would have to decide whether to count or to not count the votes, depending on the situation and lawsuit.
ReplyDeleteMelissa...I ask you the same question I asked Marlowe.
DeleteThis is interesting. I think the congress should first wait for the final result unless there is no more time to complete this before December 14th. If this is not an option they should go with the popular vote as currently represented. it is very demoralizing to feel that your vote does not count. whatever process is used needs to show the will of the people or credibility in the process is damaged.
ReplyDeleteJohn... "it is very demoralizing to feel that your vote does not count." So, does this mean you favor abolishing the Electoral College? Or, if it is retained, abandoning the "winner take all" allocation of electoral votes and joining with Maine and Nebraska who are the two states who apportion their electoral votes based on the popular vote?
DeleteThis is a great blog post and very applicable to what our country is currently facing. In response to your question, I’m not sure what route I would go to decide what happened to my state’s electoral college votes. I feel like many of the questions raised from this election have not been raised in previous elections. Although, I don’t think the results of the election would change, I think certain questions do need to be answered in order to promote a peaceful transition. I would normally decide the electoral college based on which candidate received the most votes. However, in this situation, I would probably lean towards asking the courts to decide the next steps, because there seems to be more variables involved than egos or political disagreements and I think it may require a higher authority to have the final word. On a side note- a friend of mine is registered to vote in Utah and voted in Utah, but she also received a mail-in ballot to her parent’s house-in another state-and she has never been registered to vote in that state (she obviously had her parents shred the ballot and she reported it immediately). My brother is registered to vote in Texas and voted in Texas-but he realized that someone used his information and voted for him in Chicago as well (he also reported this immediately). Not to say that these types of events haven’t occurred in previous elections, but it makes me wonder how many other people experienced similar situations and never knew? These are a couple reasons why I don’t think there is a clear-cut solution to this dilemma, and it appears that there may be push-back, regardless.
ReplyDeleteEmily...do you favor allocating electoral votes on a "winner take all" basis or should they be allocated proportionally based on the popular vote like Maine and Nebraska?
DeleteI would go with the popular vote but split the electoral votes according to the popular vote, instead of winner-take-all.
ReplyDeleteThe electoral college has not stopped specific features the Founders thought would be avoided by using this system, such as a two-party system or only having some states as a critical determinant of an election's outcome. In my opinion, the popular vote is superior to the electoral college, even though we are technically a republic with democratic principles. For now, we also have the public as a judge through the media. If a state electorate were to vote outside of their state's popular vote or laws, I think they would have to face public scrutiny, which likely keeps things in check.
Missy...would utilizing a purely popular vote to allocate electoral votes result in lessening the importance of small states like Utah? Wouldn't a candidate campaign only in the heavily populated states?
DeleteAlso, I found this 10 min video on the history of the electoral college. I cannot attest to its accuracy, but it was definitely interesting. https://www.youtube.com/watch?v=XOvN1tC9VrM
ReplyDeleteThanks for this!
DeleteI think the best choice it to recount the votes and go with the popular vote. I think the recount is necessary to reassure the people that the counted votes are accurate. Voting with the popular vote after the recount is done is the best option. There has been many questions raised during this election and I don’t think this election will be the one to settle them.
ReplyDeleteEstefany...But, what if the recount or the legal challenges are not completed by December 14, which is the date that each state must tell Congress how it's electors vote?
DeleteI think the popular vote should be the standard, and ranked choice voting a part of any overhauling of the system.
ReplyDeletePart of the issue -- a large part-- is that states are in charge of elections, so they can legislate changes to methods but inconsistency remains unless there is a nationwide effort to get most states on board with a standard for conducting elections. These can include a wide variety of voting methods, which seemed to propel in part the record turnout of voters earlier this month.
The electoral college is no longer relevant in these modern times. It does not appear in or is mandated by the Constitution, and was a compromise so that Congress didn't end up electing a president (that would be bad) but also didn't give entire power to the people. IMO it's fair to say the people have HAD IT and want their voices amplified again, not those of lobbyists, major funders, and other key not-your-average-citizen types who influence legislation, candidates, and elections through major money and advertising.
Diane...you are correct about the reason why the Electoral College was created, but it is part of the Constitution, specifically Article II of the Constitution. It has been amended three times by passage of the Twelth, Fourteenth and Twenty-Third Amendments. There have been hundreds of attempts over the years to abolish the Electoral, none of them successful. Is now the time to mount another effort to abolish it?
ReplyDeleteThank you.
DeleteI screwed that up! What I was *thinking* was that there is nothing in the Constitution that says winner-take-all electoral votes (I think) ... But clearly my elementary understanding of the College is primary grade level right now. :|