Among the many system flaws of the electoral college system in the United States, the “distrustful elector” has always been a much criticized issue. The protracted and huge controversy in the 2020 presidential election has brought this issue to prominence again. In addition to attempting to overturn the results of the election by suing the federal court, requiring some key states to recount the votes, and claiming to initiate judicial investigations into the Democratic Party for “election fraud,” Trump’s team of lawyers also pinned their hopes on electors to vote and certify. program. According to the electoral system of the United States, the electoral colleges of each state will vote in a rally on December 14. If at that time an elector who promised to vote for Biden turns to Trump, then Trump still has a chance to win. This raises the question, can a presidential elector violate his promise to vote for another presidential candidate?
How the electors are made
The use of the Electoral College system to elect the president and vice president is a unique creation of the United States. In the four-year general election in the United States, voters first elect an elector, and then the electoral college elects the president. The electoral collective is called the electoral college. Although this term does not appear in the constitutional text, the name became popular in the early days of the United States and was recognized in federal law in 1845. The constitution gives each state a number of electors equal to the total number of members of that state in the Senate and House of Representatives. In addition, the 23rd Amendment to the Constitution passed in 1961 gave three electors to the District of Columbia. Therefore, there are 538 electors in the country, with 538 electoral votes. The total number of electors in each state is re-adjusted after re-division of congressional districts based on data from a census held every ten years. The first paragraph of Article 2 of the Constitution stipulates: “Each state shall appoint a number of electors in accordance with the procedures prescribed by the state legislature.” This clause gives each state legislature the power to formulate laws governing the selection of voters. In the early days of the founding of the United States, more than half of the states had electors appointed by the state legislatures, which meant that voters in these states did not directly participate in the election of electors. In the early 19th century, as the right to vote steadily expanded to include all white men over the age of 21, this practice was quickly corrected. Since 1864, all states have adopted universal suffrage to select electors.
Currently, states adopt a two-step process to select electors. The first step is to nominate an elector for a candidate. At this stage, the practices of each state are not the same. The laws of 32 states and the District of Columbia require that the two major political parties convene state party conventions to nominate electors and candidates, and the laws of 5 states require that state political party committees nominate electors and candidates, and some states (in political parties Based on the recommendation of the committee), the governor nominates the electors and candidates. The second step is to elect a presidential elector. On the polling day of the general election, voters in each state vote on the list of presidential candidates proposed by the political parties in the state, and all electors on the list of a party with the most votes are elected. The state’s elected electors gather in the capitals of the states on the first Monday after the second Wednesday of December (the 2020 general election is December 14), and each elector casts one vote for the presidential candidate and the vice presidential candidate. . The results of the voting were signed by the elector to testify and sent to the Speaker of the U.S. Senate. The votes were counted in public at the joint meeting of the Senate and the House of Representatives at 1 pm on January 6th of the following year. The candidate who received more than half of the electoral votes (270 votes) was elected For the president and vice president.
On December 14, 2020, the Electoral College of Michigan, USA held a poll.
Presidential electors have a wide range of qualifications. The U.S. Constitution only prohibits serving as a senator, a member of the House of Representatives, and “anyone who holds a position in the United States government that is responsible or entitled to a salary”. “(Emoluments clause). Whether it is forbidden to serve as an elector for people who work on the federal government’s executive or congressional advisory committees but are not paid is not stipulated in the Constitution. In practice, the two major political parties in each state are more inclined to nominate electors such as the governor and local elected officials in other states, party activists, and state and local celebrities. Although these people are well-known in their state, few people know that they serve as electors except for themselves. This is because in most states, the name of each elector does not appear on the general election ballot. The general election ballot only lists the names of the political party and the candidates for the president and vice president. In some states, the president and vice president candidates are listed on the ballot. Add the words “electors for” before the name of the person.
The tool for the two major parties to fight for the highest executive power
According to the design of the constitutionalists, the elector is the agent of the voter’s vote, and its task is to certify the voter’s choice. The original intention of the constitutionalists was to expect voters to use their own judgment to decide who would be the best candidate to lead the country. Alexander Hamilton explained that these people will most likely have the “information and discrimination that should be possessed to handle such a complex investigation.” Although there is considerable evidence that the intention of the constitutionalists was to demand the independence of the electors, and since the first ten years after the enactment of the constitution, the electors have been regarded as agents of the public. However, the development of the electoral college system has been far. Far beyond their expectations. In the subsequent presidential elections, the electors are expected and in most cases to make a promise to vote for the candidate of the party that nominates them.
The tradition of electors to vote is closely related to the emergence of political parties and the formation of the two-party system. Before the Constituent Assembly in 1787, there were no political parties in the United States. In the two presidential elections in the early days of the founding of the People’s Republic of China, George Washington was the indisputable candidate, although the electors had disputes over the choice of the vice president (then the president and vice president were elected separately, and the president with the most votes was the president. The second most is the vice president). By the 1890s, with the emergence of political parties and the formation of the two-party system, the appointment of electors quickly became an aspect of party competition. In the presidential elections of 1792 and 1796, most state assemblies directly appointed electors. In this way, the political party that controls the state legislature controls the appointment of electors, and the party that controls the state legislature often appoints the same party and people with the same political views as electors. Since the party appoints the elector first, the elector is expected to be loyal to the party and vote for the party candidate when the party candidate wins the state vote. Electors are expected to vote for their party’s presidential and vice presidential candidates, and this is continued as a political tradition. But in the 1796 presidential election, an elector in Pennsylvania did not vote according to his party’s wishes and was accused of dishonesty. A critical article published in a Philadelphia newspaper at the time exclaimed: “Oh my God! I did not choose him, not for him to decide for me whether to elect John Adams as president or Thomas Jefferson as president. I chose him if he wanted him. Vote for me, not thinking.”
“Untrustworthy Electors” and Their Punishments
Although electors are required to vote for the candidate of the party that nominates them, and since the 1890s, almost all electors have voted for the candidate nominated by their own party they pledged to vote, but they voted for other parties in violation of their promises The electors of the candidate votes still appear from time to time. These electors who do not vote for the presidential candidates nominated by their party in the Electoral College vote are called “faithless electors”. .
Before the 2016 election, there were fewer untrustworthy voters. According to records, in the 1836 general election, 23 electors in Virginia violated their promises to vote for others in the vice presidential campaign. From 1900 to 2016, there were only 8 untrustworthy voters. In the 2016 presidential election, 10 electors tried to vote for other candidates against their promises. Three of them were replaced and only seven were successful.
In order to prevent the occurrence of “dishonest electors” incidents, 32 states and the District of Columbia have enacted laws requiring electors to guarantee that they will vote for the presidential and vice presidential candidates of the party that nominates them, or they will be punished. These penalties include changing electors, fines, or a crime. For example, in December 2016, according to Washington state law, the secretary of state imposed fines on four electors who failed to cast votes to the winners of the popular vote.
However, whether the laws and regulations enacted by the states to punish “untrustworthy voters” are constitutional, which has caused fierce controversy for many years. Critics argue that the U.S. Constitution does not stipulate that electors must vote for the majority of voters in the state; once electors are designated, they are constitutional free agents who can vote for anyone who meets the requirements of the president and vice president. Moreover, of the 9,675 electoral votes produced since 1948, there are only a dozen untrustworthy electoral votes, accounting for less than one-thousandth of the electoral votes. Therefore, there is no need to enact special laws.
On December 14, 2020, in Denver, Colorado, United States, members of the Electoral College took an oath before voting.
The Supreme Court of the United States has made many rulings on the constitutional issue of the laws that punish “untrustworthy voters” in various states. In 1952, the U.S. Supreme Court supported states in the Ray v. Blair case to penalize “untrustworthy voters”, but did not rule on whether states have the power to enforce these penalties. On July 6, 2020, the Federal Supreme Court unanimously ruled in the “Chiafalo v. Washington” (Chiafalo v. Washington) case by a 9-0 vote that states can punish “distrustful electors” in the presidential election and support Washington The state enacted a law to impose a fine of $1,000 on untrustworthy electors. The Supreme Court also ruled in the “Colorado Department of State v. Baca” (Colorado Department of State v. Baca) case, supporting the state’s replacement of an election that attempts to vote for a presidential candidate who did not obtain a majority in the state’s election. people. Although these rulings of the Federal Supreme Court recognize that states have the right to punish “distrustful voters”, they do not involve the issue of whether the voter’s trust is unconstitutional.
Among the above-mentioned “dishonest electors”, only a 2004 Minnesota “dishonest elector” voted in a joint congressional meeting held on January 6 of the following year without any objection, and this vote was recorded as valid. It is almost impossible for Trump’s team of lawyers to try to overturn the results of the election by changing the voter’s vote.