Coercing the electors? The Framers saw it coming two centuries away

If it took the results of the most recent presidential election for you to imagine a selection of angry citizens arm-twisting and threatening presidential electors to get their way, the Framers of our Constitution were way ahead of you.

On November 8th, Hillary Clinton, according to the most recent tabulation, received over 2.3 million more votes than Donald Trump. On the same day, electors designated under the name of the New York billionaire received well over the majority of support necessary to win the presidency.

{mosads}Since then, a growing chorus of dissenters have been challenging the disparate results of the popular and electoral vote tallies. Some have questioned the electoral college itself as an undemocratic relic in need of change in the modern era. Others, like Jill Stein, the 2016 Green party presidential candidate, pushed for a selective recount in a small handful of states that Clinton lost.

Most alarming, however, has been the effort by some to intimidate and coerce electors duly designated in a handful of states to change their vote when they cast them in less than three weeks. 

These attacks, not only on the integrity of the Electoral College, but on the electors themselves, are unprecedented, unseemly and precisely what the Framers predicted. 

According to Article II of the document, the number of electors per state is equivalent to the combined congressional representation each is entitled in both chambers of the U.S. Congress. The awarding of electoral votes is determined by each individual state legislature.

While these constitutional provisions tell us both how electoral votes are divided nationally and how they are allocated individually, nine words in the Constitution telling us where the electoral votes will be cast and when they will be cast demonstrate that the Founders in 1787 had a pragmatic prediction of 2016’s post-election coercion tactics.

Once allocated in whatever mode the state’s lawmakers designate  —  every state and Washington, DC benevolently decided on a popular-vote method where we, the people, get to have a say  —  electors are required to cast their ballots with a pair of Article II stipulations that make concentrated protestations and threats against them much more difficult to have an impact.

The first requirement is that the electors “meet in their respective states.” By making electors vote in thirteen separate locations  —  today 51 when we include states added beyond the original baker’s dozen and Washington DC  —  the opportunity to use influence, bully or outright violent tactics to persuade the electors into casting votes in the way a single, unified and angry crowd might want is diminished.

The second requirement is Congress has the power to designate “the day on which” electors vote. Mandating a single calendar event for electoral votes to be submitted prevents a small series of demonstrations from moving place to place to coincide with what could be a rolling calendar of electoral voting akin to primaries and caucuses. Any protest assemblies would have to be widespread and nationally organized to have any significant influence.

If presidential electors not respecting a state’s popular, pledged vote have been called ‘faithless electors’  —  a term coined decades before this year’s contest  —  perhaps those unwilling to abide by the results of the electoral vote should be called ‘faithless citizens.’ 

Regardless of the designation of election-outcome critics, the geography and timing requirements placed on electors in the supreme law of the land make it difficult for critics to “to mislead them from their duty … dispersed as they would be,” according to Alexander Hamilton, a defender of the Electoral College writing in 1788. 

Perhaps once the electors cast the only constitutionally-mandated votes for the presidency on December 19th we will finally see the results of the election recognized uniformly across the country. Or maybe another strategy will materialize before Inauguration Day to find an alternate outcome.

Either way, the nation  —  and the Constitution  —  awaits a conclusion.

James Coll is an adjunct professor of American and Constitutional history at Hofstra University and the founder of ChangeNYS.org, a not-for-profit dedicated to promoting civic education and political reform in New York.

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