Faithless Electors, Faithless Congresspersons

by Jim McCarthy

“With what shall I fix it, dear Liza, dear Liza, with what shall I fix it, dear Liza, with what?” May 30th is National Hole in the Bucket Day offering the states and Congress the opportunity to fix the hole in the bucket of Presidential electoral processes and procedures.

At present, members of Congress are unrestrained from voting to accept or reject the certified state electoral votes and slates of electors for the Electoral College. This hole in the bucket has largely been deflected by emphasis upon election integrity, a meme for voter fraud by the voters themselves (or, occasionally groups).

The names of presidential electors may or may not appear on the ballot in most states; voters by and large believe they are casting a vote directly for the president and vice president. The U.S. Supreme Court (Chiafalo v Washington, 2020) unanimously ruled that states have the constitutional authority to force electors to vote in accordance with their state’s popular vote. The opinion, while recognizing state power in this regard, does not require states to prevent faithless electors. At the time of the decision, 33 states, including Virginia, had adopted legislation binding electors.

On January 6th and 7th of 2021, both chambers of Congress assembled to affirm the results of the November 2020 presidential election as certified by the fifty states with respect to the popular vote and slates of electors named under the procedures of each state. On those two days, 147 members of Congress, including 4 House members from Virginia, voted to reject the submissions of Arizona and Pennsylvania. Their action could hardly be deemed symbolic since there were two separate votes meaning the rejections were of a more comprehensive nature.

Presently, the four Virginia House members are on the campaign trail seeking reelection, making speeches, and conducting Q&A sessions with constituents. No media reports identify a reply to the question as to why they voted to reject the two states’ results. Had the faithless members of Congress succeeded in scraping the submitted presidential results of more states, at what point would Virginia’s four have voted to reject the results from the Commonwealth? A collateral question is whether the four would accept state or federal legislation requiring them to vote for the certified presidential results from all states including their own.

In addition to the oath sworn by members of Congress, the Constitution (Art. 4, Sec. 1) holds that “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” Section 2 provides that “citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” “The United States shall guarantee to every state in this union a republican form of government.”

Originalists may parse these provisions to conclude that there is no language specifically requiring members of Congress to vote for the certified results offered by states in presidential elections. The “public acts” and “records” of “every other state” to receive “full faith and credit” seems reasonably clear as an official obligation under oath to accept the vote counts and slates of electors from every state.

Election integrity advocates are generally agreed that jail time for voter fraud by ordinary citizens is appropriate but are silent when members of Congress engage in a similar behavior. Of course, a direct solution would be the elimination of the Electoral College. However, in the 91st Congress (1969-1971), the House passed a joint resolution 338-70 to abolish that procedure only to see the measure fail to receive a vote in the Senate.

The hole in the bucket with respect to faithless members of Congress remains unplugged. The four Virginia naysayers are keeping their powder dry as there seems to be no public demand to learn the reasons for their votes in January. It’s one more example of political leadership unwilling to advance the integrity expected of it by the citizenry – except, of course, that integrity that is applied to the citizens themselves.

A “revoltin’ development” as Chester Riley would say.

Jim McCarthy is a retired New York City attorney living in Virginia.