In fact, between the 2016 election on November 8 and the scheduled electoral vote on December 19, a number of commentators assured Americans that it was for moments like this that the Founders had so wisely decided against a backup camera. The idea, they said, was that electors were to block unfit candidates. They could break their pledges to vote for their state’s winner, scatter enough votes that neither candidate would get a majority, and throw the election to the House, where high-minded lawmakers would surely choose someone other than Donald Trump. These mythical electors were called “Hamilton electors,” and the language of “Federalist No. 68” was deemed the “true” meaning of Article II of the Constitution.
In Colorado, which Clinton carried, one elector tried to vote for Ohio Governor John Kasich instead of Hillary Clinton; state officials discarded the vote, removed the elector, and referred him for prosecution on state charges. In Washington, three Clinton electors voted for Colin Powell and one for the Native American activist Faith Spotted Eagle. Under state law, their votes were recorded, but the secretary of state fined each elector $1,000 for violating the Washington elector-pledge law.
In May, the Washington State supreme court upheld the fines, reasoning that “the Constitution does not limit a state’s authority in adding requirements to presidential electors, indeed, it gives to the states absolute authority in the manner of appointing electors.” In August, the U.S. Court of Appeals for the Tenth Circuit issued a contrary decision, holding that Colorado’s actions violated the federal Constitution because
While the Constitution grants the states plenary power to appoint their electors, it does not provide the states the power to interfere once voting begins, to remove an elector, to direct the other electors to disregard the removed elector’s vote, or to appoint a new elector to cast a replacement vote. In the absence of such a delegation, the states lack such power.
I think the Tenth Circuit got it right. Electors aren’t state officials; precisely because they are such odd figures, staying close to the text of the Constitution is best. The text doesn’t tell us what an elector is (though we know he or she can’t hold any other federal office); it does tell us what states can do (control how electors are selected)—but it does not grant states any power after that. There is no context for any unwritten powers. Beyond the text is only chaos.
And that leads us to my problem with “Hamilton electors.” First, as noted above, I don’t think Hamilton believed the high popalorum he was selling in “Federalist No. 68,” and if he did, he was wrong. The Princeton political scientist Keith E. Whittington recently demonstrated that electors have more or less always functioned as party agents, not independent figures. I cannot imagine that any voter in 2016 went to the polls eager to give some unnamed fellow citizen a free choice among Clinton, Trump, Bernie Sanders, Kasich, Ron Paul, Powell, and Faith Spotted Eagle.
When Trump won the electoral contest, the republic was in danger. Would it have been saved by an Electoral College that sabotaged or reversed the result? Citizens should support such an electoral démarche, I think, only if they would also support a military coup to block Trump. Either alternative would inflict near-mortal damage on our system of elections.