The Washington PostDemocracy Dies in Darkness

Opinion We were presidential electors in 2016. We should be allowed the ‘vote’ our Constitution gave us.

The U.S. Supreme Court on Jan. 18, 2019. (Salwan Georges/The Washington Post)

Michael Baca, Polly Baca and Robert W. Nemanich were presidential electors from Colorado in the 2016 presidential election. Bret Chiafalo and Esther John were presidential electors from Washington state in the same election.

Can states force presidential electors to vote for a particular candidate for president?

On Wednesday, the Supreme Court will hear two cases dealing with that important and unresolved question. The cases address what we did in 2016, when we were members of the electoral college in Washington state and Colorado. The states say they need this power so they can implement the will of the voters, who either don’t know what the electoral college is or just expect the electors to be robots and vote for the winner of the popular vote in the state — no matter what.

We’re here to say conclusively: We are not robots. We are human beings. We should be allowed the “vote” the Framers of our Constitution gave us, one based on our honor and discretion.

That discretion, of course, is cabined by our pledge to support a party candidate. But if things go sideways, our system depends upon humans as the safety valve. And it is only by turning electors into rubber stamps that the system might actually go haywire.

We were each nominated by the Democratic Party to support Hillary Clinton in 2016. If she had won the popular vote and was expected to win the electoral vote, we were eager to vote for her. We did not set out to put a presidential election on our shoulders. No elector ever has done that, and none should.

But while Clinton won more popular votes nationally, she was expected to lose in the electoral college. So, faced with defeat for the candidate preferred by millions of voters in our two states, we decided to try something different. Working with others, we asked Republican electors to consider that a clear majority of America did not want the presumptive winner of the electoral college as president. We suggested they vote with us for a different Republican, and thereby give the House of Representatives a choice — either support the presumptive winner in the electoral college (the outcome we thought likely), or support the winner of the popular vote (the outcome we thought completely unlikely), or support a different Republican, less extreme and less hated by almost everyone in America. If 35 more Republicans had agreed with us (two Republican electors from Texas did), then the choice of president would have been made in the House of Representatives, as the Constitution provides. We can’t say what would have happened then, but we can say that we at least put country over party to give Congress a chance to choose a third way.

Yet our states punished us for that act. They claimed to be channeling the will of the voters by trying to keep us in line, but that’s not true: We were channeling the voters by trying to give voice to the millions of voters who would have preferred a moderate Republican to Donald Trump. The states’ argument is not pro-democracy; it is pro-partisanship.

But it gets worse. Our states’ insistence that electors must vote for the party nominee no matter what happens has a major flaw lurking in plain sight: What if, God forbid, that nominee dies after the popular vote and before the electoral college vote? According to the states, the electoral college must vote for a dead person. But the 20th Amendment to our Constitution plainly empowered electors with the discretion to choose if that contingency happened. The Framers self-consciously did not address the death of a candidate before the college votes. Instead, they chose to leave the electors as the human safety valve.

Under the laws defended by the states, however, electors are stripped of any discretion, even in this extreme case. The electoral votes for a deceased candidate would be lost, and the choice of president would then be handed over to the House of Representatives — where every state, regardless of size or population, gets just one vote.

We recognize that many are fearful of a “handful of rogue electors,” as one law professor put it, overturning the results and electing the other party’s candidate. But of the 23,507 electoral votes for president in the history of the United States, exactly one has been cast by an elector who switched sides — and even he was switching sides to recognize the actual majority vote in his state, improperly counted when he was appointed. That first “faithless elector,” as we are sometimes called, was actually more faithful to the will of the voters than the vote from his state would otherwise have been — just as we tried to be more faithful to the will of our voters than simply sitting back and allowing the selection of a president who the majority of voters did not support.

We all recognize that our system for picking the president is imperfect. The question is how we go forward; the answer is to recognize that the humanity of electors is made clear in the Constitution. Changing that now with patchwork reforms of a few states could do way more harm than good. It is certainly not justified by anything that the tens of thousands of electors across our history have done.

Read more:

George F. Will: Like it or not, faithless electors have a right to be unfaithful

The Post’s View: Voters have concerns about the electoral college. The Supreme Court is clearing one thing up.

Charles Lane: A nightmare scenario for 2020: A tie that can’t be broken. It’s conceivable.

E.J. Dionne Jr.: The electoral college is in trouble

Joshua Spivak: The electoral college is a failure. The Founding Fathers would probably agree.