At Least One Faithless Elector is Likely, and More Are Possible

D.C., D.C. - Nov. 6, 2016 - PRLog -- Robert Satiacum, an elector in Washington State pledged to Hillary Clinton, says he definitely will not cast his electoral vote in the Electoral College for her if she wins his state's popular vote; a win which appears to be virtually certain given current polling.

        Bret Chiafalo, another Democratic Washington elector, says that he is considering joining Robert.  Some Republican electors have also expressed reluctance if not uncertainty about voting for Donald Trump in the Electoral College; a growing possibility given some of the very recent revelations about him.

        Even a few so-called "faithless electors" could change the outcome of the election by throwing their votes to the other candidate, or by pushing the race into the House of Representatives.

        It appears that the law cannot stop this from happening, says public interest law professor John Banzhaf, whose studies of the Electoral College have become generally accepted and are now widely quoted.

        Washington law [RCW 29A.56.340] provides that any "elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars."  But that tiny penalty is unlikely to deter any elector determined to make a point, and Satiacum has said that the penalty, even if it could be imposed, will not deter him.

        Other than that, and such laws are of doubtful constitutionality anyway, there appears to be no possible way to stop any faithless elector from casting his vote for anyone, announced candidate or not, as he wishes. Indeed, it has already happened more than 150 times in our history.

        Moreover, a federal judge recently held unconstitutional Virginia's statute that provided penalties for delegates to party conventions who do not follow the results of the presidential primary.

       Concern about faithless elector is not the only problem with the Electoral College.

        Another is the very real chance of a "misfire" when the electoral vote winner is different from the winner of the popular vote.  This has already happened three times in our history, and could well happen any time an election is close, notes Banzhaf.

        Another concern is that voters living in different states have widely disparate voting powers.

        Hypothetically, and given a random distribution of Democrats and Republicans, individual residents in California have a much higher chance of affecting the outcome of the election than voters in many other states.

        But, since California almost always votes Democratic, there is little chance that any voters in the state could affect the outcome, especially compared to voters in populous swing states like Florida.

        This is far from the "one man, one vote" aspiration repeatedly articulated by the courts, argues Banzhaf.

        However, there are also a number of perceived problems with any of the alternative proposals to replace the Electoral College, including a direct election of the president, argues Banzhaf.

        Under a direct election, it is feared that candidates would spend most of their time and resources in states with large populations and large numbers of electoral votes such as California, a state in which the cost to reach each voter is less than in many other more sparsely settled state.

        Some political scientists also argue that a direct election would reduce the influence of minorities, especially African Americans, and result in undo influence by city dwellers.

        No system of presidential election - Electoral College, direct election, voting by district, etc. -  is perfect, argues Banzhaf, whose voting calculations almost produced a constitutional change years ago.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/  jbanzhafATgmail.com  @profbanzhaf