Should Presidential Electors Exercise Independent Judgment?

In the commentary section of today’s Richmond Times-Dispatch, I argue that presidential electors can, and should, exercise independent judgment when they cast their states electoral votes in December.

In “Electors should vote their consciences,” I begin by telling the story of Roger MacBride, a Virginia elector in 1972 who was pledged to vote for incumbent Republican President Richard Nixon. MacBride chose, instead, to cast his ballots for the Libertarian ticket of John Hospers and Tonie Nathan. The Libertarian Party had been founded barely a year earlier, and its presidential ticket appeared on the ballots of only four states. (Nixon, you may recall, thumped George McGovern that year, winning every state but Massachusetts and the District of Columbia. He went on to resign in disgrace two years later.) The notoriety MacBride achieved by this brazen act catapulted him, four years later, to become the LP’s second presidential nominee.

While “faithless electors” may break the law in some states, what few court decisions that have addressed the matter indicate that presidential electors may vote their consciences:

State laws (like Virginia’s) that bind electors to particular candidates have rarely, if ever, been tested. An Oklahoma elector in 1960 who voted for Virginia Sen. Harry F. Byrd rather than Richard Nixon did so even though he was threatened with a $1,000 fine. “I am not worried about $1,000,” he said, and the only penalty imposed on him was a refusal to pay his travel expenses to Oklahoma City.

Few court decisions have addressed the independence of presidential electors. An 1896 Kansas court decision said that electors were under “no legal obligation” to support any particular candidate and were “authorized to use their own judgment as to the proper eligible persons to fill these high offices.” In 1948, the Ohio Supreme Court ruled that all electors were free to vote as they pleased, because it was “only by force of a moral obligation, not a legal one, that the presidential electors pledged to certain candidacies fulfill their pledges after election.”

Each elector can make up his or her mind about whether to follow the election returns or to vote independently, but this year’s decision making process carries unusual moral and ethical weight. Both of the two largest parties have nominated flawed presidential candidates. While Democratic electors are, for the most part, satisfied with Hillary Clinton (if not enthusiastic about her) as their party’s candidate, Republican electors are, like Republicans at large, conflicted about Donald J. Trump.

So, I argue:

The electors’ right to independent judgment may be most pertinent this year, when GOP presidential electors are expected to vote for a nominee who has brought shame to their party. The vulgar and impolitic Trump has expressed contempt for the Constitution, undermined confidence in the integrity of the electoral system, dismissed any interest in the legislative process, and been at loggerheads with time-tested conservative, Republican values.

A Republican “faithless elector” in 2016 will bravely and astutely avoid the future taint of association with Trump, the most unfit character ever to seek the presidency, simply by casting his ballot for Gary Johnson (my choice, and the choice of this newspaper) or another suitable person.

If either Democratic or Republican electors, in Virginia or elsewhere, choose to vote their consciences on December 19, I’ll give them full credit for having moral courage. It would be nice to think my op/ed piece influenced their choices — and perhaps some of them will have seen it, since (if the metrics app is believable) more than 3,700 readers have recommended the article to their friends on Facebook.