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Electoral College Raises More Constitutional Questions Than Just Faithless Electors

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Carroll Robinson and Michael Adams
February 2, 2020

The United States Supreme Court recently announced that it will review the so-called, “Faithless,” elector question of whether states can constitutionally mandate that their Electors, members of the Electoral College that actually vote to elect the President of the United States, vote for the winner of the state’s popular vote in a presidential election.

The issue of faithless electors, though not a political or constitutional problem in the past, is an important constitutional question that should be answered by the Supreme Court ahead of the November 2020 presidential election.

The faithless electors issue is not the only constitutional question that needs to be answered as it relates to the integrity of the Electoral College. 

Under the Twelfth Amendment to the United States Constitution, when the Electoral College votes are counted by Congress, “The person having the greatest number of votes for President [and Vice President] shall be the President [and Vice President], if such number be a majority of the whole number of Electors appointed….” 

Under the current status of the law, as it relates to statutory and constitutional interpretation, the word “Shall,” is considered to be mandatory as opposed to suggestive.

In light of the mandatory, “Shall,” requirement of the Twelfth Amendment, we also need to know if Congress can constitutionally refuse to accept the results of the Electoral College if the votes of electors are (were) contaminated by fraud or corruption, or if the underlying election result that produced the electors in any one or multiple states is the result of foreign interference, domestic (or foreign) hacking of voting machines, political corruption or old fashioned political fraud such as illegal voters, voter suppression or voter intimidation.

The question above has both a prospective and retrospective aspect that must be answered. What if Congress knows in advance, before it counts the electoral votes; and what if Congress finds out after it has already counted and certified the Electoral College vote? In the former instance, can Congress constitutionally refuse to accept the Electoral College vote and require a new presidential election? In the latter instance can Congress decertify it prior acceptance of the electoral votes for either the President, Vice President or both? If the votes for President were decertified, would the Vice President automatically ascend to the presidency or would a new presidential election be required? If the votes for Vice President were decertified would the President be allowed to replace the VP pursuant to Section 2 of the Twenty-Fifth Amendment to the United States Constitution?

If the electoral votes for both the President and Vice President were decertified, would one, or both, candidates be barred from running again by their political party or Congress?

The questions we have raised are as (and possibly much more) important to protecting our democracy than the question of honestly motivated faithless electors.

Addressing these questions later will mean doing so in the middle of a constitutional crisis and political dispute far worse than hanging chads and impeachment.

For those who default to the position that the Twentieth and Twenty-Fifth Amendments provide the answers to these questions, they are incorrect. The Twentieth Amendment applies when no candidate properly won a majority of the Electoral College votes. At best, Section 3 of the Twentieth Amendment may be able to hold us over through the litigation of the constitutional questions above or until Congress could expeditiously send to the states a constitutional amendment to address the challenges we have outlined.

As to the Twenty-Fifth Amendment, if a President elect or Vice President elect were improperly or illegally elected and seated, were they in fact ever officeholders for purposes of triggering the application of the Amendment? This question itself raises questions about the role of Article II, Section 1, Clause 5 (and the Twelfth Amendment as it relates to the qualification to serve as Vice President) in light of the United States Supreme Court decisions in Powell v. McCormack and U.S. Term Limits v. Thornton. (The constitutional requirements for holding office cannot be altered without a constitutional amendment pursuant to Article V. These cases however only relate to Congress (Article I) and not to the Executive Branch (Article II Presidency/Vice Presidency).) In other words, do you have to be legally elected to serve as President or Vice President? The answer seems a self-evident yes, but boy is constitutional litigation a funny thing in election contests; Remember Bush v. Gore?

Authors: Hon. Carroll G. Robinson, Esq. Dr. Michael O. Adams, PhD. Robinson and Adams are faculty members in the Political Science Department at the Barbara Jordan-Mickey Leland School of Public Affairs at Texas Southern University.

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