The Electoral College

I have never really understood the Electoral College (EC). Recently a friend and I were talking about people who are apparently trying to convince electors to the EC not to vote for President-elect Donald Trump, and he asked me if this was possible. The 538 electors meet Dec. 19 this year to officially vote for the President. The EC has a long and fascinating history (which I can only touch on here), and a surprising answer to the question as to whether they are bound delegates nationwide.

History of the Electoral College:

Originally, Article II, clauses 2 and 3 of the Constitution set out the plan where electors would choose the President and the Vice-President. The framers of the Constitution assumed electors would be elected by district, would not be bound to vote for who their state voted for, the President and Vice-President would not run together, and the system would usually not select either a President or Vice-President, thus throwing the election into Congress. Obviously, many things have changed since 1789. Havoc ensued when candidates from opposing political parties were elected President and Vice-President, such as Federalist parties John Adams (President) and Democratic-Republican parties Thomas Jefferson (Vice-President) in 1796.

The states then ratified the Twelfth Amendment in 1804, making sure separate ballots were cast for President and Vice-President. Over the years, the EC system has varied state by state from where electors selected could vote for whoever they thought best, to electors being bound by the popular vote, to winner-take-all states electors, to Congressional districts only electors, both bound and unbound. A review of the history of the EC is truly captivating, but space limitations prevent presenting the full history here.

Montana's System:

Currently electors are selected based upon the laws of every state, on a state by state basis. In Montana, the “Uniform Faithful Presidential Electors Act” (UFPEA) was passed in 2011. Under the UFPEA, political parties or unaffiliated presidential candidates submit to the Secretary of State electors selected by those entities. An elector must sign a pledge which states: “If selected for the positon of elector, I agree to serve and to mark my ballot for president and vice president for the nominees of the political party that nominated me.” If an elector does not vote, or presents a ballot in violation of the pledge, another elector is selected as a replacement. Section 13-25-307(4), MCA.

Nationwide, 29 states have laws similar to Montana’s regarding “faithlessness”, the term used when an elector does not vote or does not vote for their nominated candidate. Of course, that means there are 21 states without a faithfulness remedy.

Summary:

There are scenarios where rogue electors could conceivably not vote their state’s top vote getter and put the Presidential election into Congress. That is highly unlikely, however. Furthermore, regardless of who you voted for, hopefully we can all agree that would be a terrible idea—in Montana, we still live by the creed that your word is your bond. There are pros and cons to the EC, but those will have to wait for another article, if there is interest. In the meantime, be watching for what happens “on the Monday after the second Wednesday in December”, Dec. 19 this year.

Judge Russell Fagg has been a State District Court Judge for nearly 22 years, and has handled over 25,000 cases during his tenure. Fagg is past President of the Montana Judges Association and served two terms in the Montana legislature.