Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Susan Fischetti of Eagle River, Alaska, won’t do it. Neither will Dennis Booth of Yuma, Ariz. Evans Thomas, a lawyer from Appomattox, Va., knows he could do it, but calls the idea “abhorrent.” Indeed, if the current presidential vote holds, these three electors for George W. Bush could switch sides and hand Al Gore a 270-268 win in the Electoral College on Dec. 18. Doing so would require a staggering act of political disloyalty. But, according to the only Supreme Court case remotely on point, it would be allowed under the law. With the presidential election in doubt and the candidates divided by the narrowest of margins, the long taken-for-granted Electoral College rose to the fore last week. The National Archives and Records Administration, which along with Congress counts electoral votes, acknowledges the Electoral College’s open-ended power. “There is no Constitutional provision or Federal law that requires electors to vote according to the results of the popular vote in their States,” according to the Electoral College’s Web site. Electors in 24 states and the District of Columbia require, either by law or by political party rules, that electors pledge to follow the statewide vote. “Enforcing those pledges is another matter,” says Matthew Hoffman, a litigator at Washington, D.C.’s Shea & Gardner who has written on the issue. Legal precedent on the subject is thin, boiling down to a 1952 ruling by the Supreme Court in Ray v. Blair. The case arose out of the 1948 presidential election, when southern Democrats, upset with the civil rights promises of President Harry Truman, broke from the party and voted for electors pledged to “Dixiecrat” South Carolina Gov. Strom Thurmond. In 1952, the Alabama Democratic Party executive committee closed its primary election to any candidate for presidential elector who refused to pledge to support the national Democratic nominee. Edmund Blair registered to run as a Democratic Party elector, but vowed not to cast a vote for any candidate who supported civil rights. When the state party refused to put Blair on the ballot, the segregationist brought a suit in state court and won an order putting him on the ballot. On appeal, the Alabama Supreme Court ruled that the 12th Amendment of the Constitution did not require electors to vote for the statewide choice and ordered Blair added to the ballot. The executive committee of the state’s Democratic Party took the case to the U.S. Supreme Court, which took the case on an expedited basis with the primary only six weeks away. Four days after oral argument, the justices reversed by a 5-2 vote. The court issued a full decision 11 days later. The Court upheld the party’s pledge requirement. But it did not decide whether such a policy could be enforced by the state, appearing to leave electors free to vote as they choose. Justice Stanley Reed, writing for the majority, said the 12th Amendment does not require an elector to vote any particular way, but it “does not prohibit an elector’s announcing his choice beforehand, pledging himself.” In language that suddenly has more meaning today than it did a week ago, Reed suggested that “such promises of candidates for the electoral college are legally unenforceable.” Justices Robert Jackson and William O. Douglas dissented. Jackson acknowledged that the electoral system originally envisioned “free agents” who select the president. Although the system had devolved into one of straight party loyalty, he added, electors’ powers to vote their conscience “could not be forfeited by disuse.” As an aside, Jackson added that he wouldn’t be saddened by the demise of the electoral system. “At its best, it is a mystifying and distorting factor in presidential elections which may resolve a popular defeat into an electoral victory,” Jackson wrote. One Gore elector, George Platt, expressed similar majoritarian sentiment. He suggests that Bush electors could switch sides to make the electoral count match Gore’s apparent national popular vote victory. (Millions of untallied absentee ballots around the country have so far left the popular vote victor an open question.) Platt, a Fort Lauderdale, Fla., lawyer and lobbyist, doesn’t expect any Bush electors to defect. “It’s fun to speculate,” he says. Thomas, one of 13 Bush electors from Virginia, doesn’t find the idea of vote-switching much fun. “It’s very frightening,” he says. Bush elector Booth — who owns a farm equipment company in Arizona — agrees. Before Election Day, polls showed that Gore might win the electoral vote while Bush could take the popular vote. If that had happened, Booth says, he wouldn’t have wanted a Gore elector to switch sides. “I think the nation would be horribly served,” he says. Election experts say vote-switching is highly doubtful, considering most electors are loyal party activists picked at conventions. “That’s why they’re picked,” says Platt. While many electors are unknown to the general public, others are highly visible. North Dakota’s three Bush electors are the governor, the lieutenant governor, and a retired state lawmaker. In Florida, Bob Butterworth, state attorney general and Gore state director, is an elector. In Alaska, 42-year-old Bush elector Fischetti has been active in the GOP since the 1988 Bush campaign. She says she can’t wait to fly down to Juneau to cast her vote on Dec. 18. Fischetti says there’s not a chance she’d switch her vote. She works for industries supporting oil drilling in Arctic Northern Wildlife Refuge, which Bush supports and environmentalist Gore denounces. “We’re definitely really scared of Al Gore,” she says. Her vote will be particularly pleasing she says, because Alaska’s three electoral votes are often dismissed as unimportant in the national election scene. But with the count so close, Fischetti adds, “we really do matter.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.