[EL] Does 269-269 worsen the faithless elector problem?

Fri Oct 26 13:38:48 PDT 2012

I wonder, if an elector needs to be absolutely bound such that a "faithless
elector" remedy needs to be enacted, why have electors at all? Why not
simply use the certified results in light of the state legislature's
definition of method in lieu of a meeting of electors?

It seems to be implied by the fact that human beings are chosen as electors
that there remains some discretion to exercise at some level, which
discretion when exercised the disappointed would call faithless and others
would call courageous, wise, and appropriate.  Faithless elector laws may
just  be another attempt to legislate some allegedly pernicious aspect of
the Constitution out of practical existence, much like the national popular
vote compact attempts to legislate away constitutional features deemed
undesirable at the present time.

Personally, I'd much prefer to see electors faithful to the apparent
election results, but if a legitimate issue arises regarding the election
results in a state that are nevertheless certified, I can also see the need
for the discretion.

Paul Lehto, J.D.

On Fri, Oct 26, 2012 at 4:26 PM, Smith, Brad <BSmith at law.capital.edu> wrote:

>  I’ve never quite understood why, if you favor the electoral college,
> there is any reason to worry about “faithless” electors. And given that
> there has never been a “faithless” elector that mattered (and little reason
> to think any “faithless” elector would have remained “faithless” if it
> had), I think there is even less reason to worry about it.****
>
> ** **
>
> *Bradley A. Smith*
>
> *Josiah H. Blackmore II/Shirley M. Nault *
>
> *  Professor of Law*
>
> *Capital University Law School*
>
> *303 East Broad Street*
>
> *Columbus, OH 43215*
>
> *(614) 236-6317*
>
> *bsmith at law.capital.edu*
>
> *http://www.law.capital.edu/faculty/bios/bsmith.asp*
>
> ** **
>
> *From:* law-election-bounces at department-lists.uci.edu [mailto:
> law-election-bounces at department-lists.uci.edu] *On Behalf Of *
> JBoppjr at aol.com
> *Sent:* Friday, October 26, 2012 12:02 PM
> *To:* john at johnkoza.com; derek.muller at gmail.com; law-election at UCI.EDU
> *Subject:* Re: [EL] Does 269-269 worsen the faithless elector problem?****
>
> ** **
>
> Here is the Uniform Faithful Presidential Electors Act. ****
>
>  ****
>
> Click here: Faithful Presidential Electors Act<http://www.uniformlaws.org/Act.aspx?title=Faithful%20Presidential%20Electors%20Act>
> ****
>
>  ****
>
>  ****
>
> I was on the Drafting Committee and I think it is an admirable bipartisan
> effort worthy of adoption. We ran it by the National Popular Vote people
> and this Uniform Law works even if that is adopted.****
>
>  ****
>
> We believe it would fix the unfaithful elector problem as well as fix
> other potential problems such as vacancies, etc.  ****
>
>  ****
>
> Thank you for recommending it, John  Jim Bopp****
>
>  ****
>
> In a message dated 10/26/2012 11:43:42 A.M. Eastern Daylight Time,
> john at johnkoza.com writes:****
>
>  State legislatures should give some attention to, and pass, the Uniform
> Law Commission’s “Uniform Faithful Presidential Electors Act.”  The Act has
> several of the features of North Carolina’s current law. The Act provides a
> statutory remedy in the event a presidential elector fails to vote in
> accordance with the voters of his or her state. The Act has a
> state-administered pledge of faithfulness, with any attempt by an elector
> to submit a vote in violation of that pledge, effectively constituting
> resignation from the office of elector. The proposed uniform law calls for
> the election of both electors and alternate electors. The Act provides a
> mechanism for filling a vacancy created for that reason or any other.  ***
> *
>
> ** **
>
> ** **
>
> Dr. John R. Koza****
>
> Box 1441****
>
> Los Altos Hills, California 94023 USA****
>
> Phone: 650-941-0336****
>
> Fax: 650-941-9430****
>
> Email: john at johnkoza.com****
>
> URL: www.johnkoza.com ****
>
> URL: www.NationalPopularVote.com <http://www.nationalpopularvote.com/>****
>
> ** **
>
> *From:* Derek Muller [mailto:derek.muller at gmail.com]
> *Sent:* Thursday, October 25, 2012 5:15 PM
> *To:* Election Law
> *Subject:* [EL] Does 269-269 worsen the faithless elector problem?****
>
> ** **
>
> Dear all,****
>
> ** **
>
> Perhaps one of you knows the answer to this problem. If the electoral vote
> is tied at 269, the race is thrown to the House of Representatives, where,
> it is assumed, Mitt Romney would win.****
>
> ** **
>
> But, I imagine that there would be a significant amount of canvassing of
> Mr. Romney's electors by Barack Obama's team in an attempt to win over just
> one of those electors and break the tie. After all, we would likely know
> most of the electors shortly after November 6, but the electors would not
> cast ballots until December 17.****
>
> ** **
>
> Additionally, the contingent election in the 12th Amendment allows for the
> top three electoral vote-getters to be voted on in the House. If it's
> 269-269, isn't there a great incentive for, say, one of Mr. Obama's
> electors to vote for Jill Stein, or one of Mr. Romney's electors to vote
> for Gary Johnson or Ron Paul? Then, we might have an even more absurd
> contingent election: 269 electoral votes for Mr. Obama; 268 electoral votes
> for Mitt Romney; 1 vote for Ron Paul; top three thrown into the House.
> (Which adds an additional problem: what if there are several candidates who
> each receive a single castaway electoral vote? Who wins the coveted third
> slot before the House if Ms. Stein, Mr. Johnson, and Mr. Paul all receive 1
> electoral vote?)****
>
> ** **
>
> Best,****
>
> ** **
>
> Derek****
>
> ** **
>
> Derek T. Muller****
>
> Associate Professor of Law****
>
> Pepperdine University School of Law****
>
> 24255 Pacific Coast Hwy.****
>
> Malibu, CA 90263****
>
> +1 310-506-7058****
>
> SSRN Author Page: http://ssrn.com/author=464341****
>
>
>
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-- 
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul at gmail.com
906-204-4965 (cell)
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