JURIST Guest Columnist Victor Williams of the Catholic University of America Columbus School of Law says that the US presidential election system contains flaws which may ultimately make it more difficult for the federal government to responsibly resolve the upcoming “fiscal cliff” in the national budget…

It is time again for the quadrennial, troubling tour of the Electoral College. As we visit the Electoral College for the first time since Citizens United v. Federal Elections Commissions, we are also speeding toward the unprecedented fiscal cliff of substantial, varied tax hikes; blunt, automatic spending cuts; and another debt ceiling limit. The 2012 electoral process needs to go well, or at least conclude quickly, so that our elected leaders can immediately begin to fix this fiscal cliff.

With each passing day, the predicted consequences of the fiscal cliff become more dire with a serious recession certain and another debt downgrade likely. Already, the costs of the indecision and uncertainty are being realized.

Unfortunately, our Constitution’s presidential selection process is anything but quick or certain. The US will not have a national presidential election in which voters select either Republican candidate Mitt Romney or US President Barack Obama. Rather, there will be 50 separate state-run elections in which voters are able only to choose a slate of partisan electors pledged to a candidate.

It is not until the Monday after the second Wednesday in December when those 538 party-pledged electors will actually choose our president. The US Constitution assigns each state the number of electors equal to its congressional delegation (House members plus two Senators).

The standard tour of the Electoral College usually skips the institution’s uglier history — it is a direct vestige of slavery. It was one of several pro-slavery victories won by southern states in 1787 while drafting the Constitution (a document that never uses the term “slave” or “slavery”). The framers capitulated to southern demands that Congress not be permitted for twenty years (until 1808) to ban the importation of slaves — a guarantee writ in stone by a “never amend” provision. The Convention further appeased southern states by counting each of their slaves as “three-fifths” of a free person for House apportionment representation.

Next, the Constitution links the number of a state’s presidential electors to the size of the state’s congressional representation. The slaves’ three-fifths apportionment status, combined with the Electoral College mechanism, gave southern slave owners a functional — if fractional — presidential proxy vote for their slaves.

Gettysburg paid the price, but the US continues to scrub the constitutional stain of our “peculiar institution.” Evidence our problematic Electoral College:

Free Agent Electors: Super PACs Target Electors’ December 17 Vote

The electors we choose on November 6, 2012 will have only pledged to vote for their respective party’s ticket. Each elector has the freedom to choose based on their own judgment. Despite state statutory restrictions attempting to punish elector faithlessness, each one of the 538 electors is a constitutional “free agent.”

The electors are not even restricted to the general election candidates; they may vote for any person who is constitutionally eligible for the presidency. Example: a 2012 elector could validly vote for non-candidate Hillary Rodham Clinton but not William Jefferson Clinton (term-limited) or Chelsea Victoria Clinton (only 32 years old). Throughout history, there have been 156 electors who have exercised their electoral discretion; in 1823, a group of 23 Virginia electors went “faithless.”

At least three GOP slated Romney electors (who are loyal supporters of Ron Paul) have reportedly threatened to not vote for Mitt Romney in the Electoral College.

In the first presidential election since the Citizens United ruling, individuals and corporations are free to spend “whatever it takes” to influence the 2012 result. It is fair to wonder whether, how, and how much unlimited independent expenditures might be brought to influence the 538 US citizens who actually choose our president. Perhaps a few electors will simply be persuaded to vote to abstain (or to vote for their spouse or neighbor) thus denying a 270 majority to anyone. We will not know for certain until all pledged electors vote on December 17, 2012. In a squeaker of an election, two or three “faithless” electors could change the result.

Bush v. Gore Redux: Voting Malfunction and/or Popular Vote Disparity

A dozen years after dimpled chads, non-votes and recounts throughout Florida, our state-run elections are still dependent on the kindness and efficiencies of local election officers. We have yet to adequately reform election administration. The voting processes are clearly not “beyond the margin of litigation.” In close local results, the opportunity for mistake, mischief and full electoral meltdown remains high. Election lawyers are lining up in Ohio and many other swing states.

Final formal objections regarding irregularities may be lodged when the electors’ votes are presented to the joint session of Congress on January 6, 2012. The chambers, voting separately, must agree to reject contested electoral votes. A congressional challenge was last lodged in January 2005 against Ohio’s slate of Bush electors.

The malapportioned Electoral College often encourages disparity between the national popular vote and the Electoral College result. Four times in our history, the popular vote victor has lost the election. The latest was when Al Gore won the most popular votes while George W. Bush successfully litigated, culminating in the Supreme Court case of Bush v. Gore, an Electoral College majority. Any disparity between the national popular vote total and the final Electoral College result will be fully exploited for partisan advantage during fiscal cliff negotiations.

A 269-269 Tie or a Non-Majority: The 113th House Chooses the President

Polling and election experts continue to run scenarios for a 269-269 tie in the 2012 electoral count. In the unlikely event of an electoral tie (or the more probable situation of no person receiving a 270 majority because of a few faithless or abstaining electors), the selection is defaulted to Congress. Lost immediately would be the certainty, finality and the needed refocus of attention needed to fix the fiscal cliff. The uncertainty would carry over to the next year.

The 113th Congress would be charged with selecting the executive when it meets on January 6, 2013. The House of Representatives would choose the president (from the top three electoral vote recipients) and the Senate would select the vice-president (from the top two candidates).

Manifesting the rawest malapportionment in accord with the Twelfth Amendment the House casts ballots, but each state delegation has only one vote. California’s 53 House members would have the same one vote as Wyoming’s lone House member. Each Senator would be given a vote to choose a vice-president. Joe Biden, as president of the Senate (at least until noon on January 20), would have the opportunity to vote for himself if the upper chamber were evenly divided. The even stranger result of a Romney-Biden administration would make for “interesting times.” In the event of a tie, the 113th Congress will not be focusing on solving our fiscal mess.

The Ohio Hypo: GOP State Legislature Voids Election, Appoints Electors

The most shocking Electoral College result, however, would be for a state legislature to take the selection of the state’s electors away from the voters.

Swing state Ohio, with its 18 electors, makes for a good, worst-case hypothetical: assume that on the night of November 6, President Obama narrowly wins the popular vote in Ohio, which in turn gives him a small victory in the Electoral College tabulation (also assume all Obama-pledged electors remain faithful).

By high noon on Wednesday, November 7, the GOP majority in the Ohio House of Representatives and Senate void the election results. The state legislature, through a simple joint-resolution, directly appoints the Romney-pledged slate of 18 electors. (In our hyper-partisan age, the hypothetical writes itself.)

Republican Secretary of State Jon Husted and Treasurer Josh Mandel could aggressively support the elector appointment by alleging voter fraud, early vote irregularities and military vote suppression. Husted could proclaim that Ohio had taken back its electoral process from federal judicial control. Governor John Kasich (whose signature is not needed for the joint resolution), Senator Rob Portman and Representative John Boehner could each humbly defer to the will of their Ohio legislature. They would each rightly reference the US Constitution.

Any State Legislature Has the Authority to Take Back the Vote

Any state legislature could preemptively cancel or void the results of a November general election and directly appoint the state’s electors. (As for the District of Columbia, Congress controls the appointment method of its three electors.)

Justice Joseph Story described, in his Commentaries on the Constitution, how “in some States the legislature[s] have directly chosen the electors by themselves.” Story defended such direct appointments as “firmly established by practice, ever since the adoption of the Constitution.”

In 2000, the Supreme Court simply restated, in Bush v. Gore, the Electoral College truth:

The individual citizen has no federal constitutional right to vote for electors for the President of the US unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.

And leaving no doubt about state legislature’s mulligan authority, the per curium opinion continued: “The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.”

The intersection of the Electoral College and the fiscal cliff is made even more dangerous by the continued manifestation of vehement, destructive, asymmetric partisanship described in Thomas Mann and Norman Ornstein’s It’s Even Worse Than it Looks. Unless we have a conclusive election result, it could be far worse than anyone imagines.

For 2012, we can only try to educate and prepare for the consequences of any degree of electoral disruption. If the US is to go over the electoral or fiscal cliff, we should have the courage to do it with our eyes open.

Victor Williams is a Clinical Assistant Professor at Catholic University of America Columbus School of Law. He is also an attorney in Washington, DC. He teaches Law and Economics and Lawyering Skills. Williams has been widely published in numerous legal journals and is a frequent media interview guest, providing evaluation of legal and political issues by print, television, radio and Internet media. He has been an interview guest on CNN, Court TV, Fox News, ABC News and numerous radio talk programs.

Suggested citation: Victor Williams, A Dangerous Intersection: The Electoral College and the Fiscal Cliff, JURIST – Forum, Nov. 3, 2012, http://jurist.org/forum/2012/11/victor-williams-electoral-college.php.