- The Washington Times - Tuesday, November 21, 2000

Neither presidential aspirants George W. Bush nor Al Gore could be accused of playing by Queensberry rules in their gladiatorial quest for the White House. Both seem prepared to cajole electors pledged to the other side to betray their honor (and probably state law) and to switch their votes when they meet in their respective states on Dec. 18. From the 538 electors (possibly 25 fewer if Florida's appointments remain in the twilight zone), only a tiny number of Benedict Arnold-like defectors could carry the day for Mr. Gore. At present, sans Florida, he leads Mr. Bush in electoral votes 267-246. If Mr. Bush captures Florida (and surges to a 271 majority), Mr. Gore could connive his way into the presidency with but three faithless electors.

And he seems prepared to try the faithless elector card if necessary to triumph. According to a Washington Post story Friday, Bob Beckel, a seasoned Democrat consultant who managed Walter F. Mondale's 1984 presidential campaign fiasco, is hoping to identify Republican electors nationwide vulnerable to opting for Mr. Gore because they became convinced that he defeated Mr. Bush in Florida irrespective of what the state itself finally determines.

That tactic of desperation seems more shadow than substance. Since the first election of George Washington in 1788, more than 19,000 presidential electors have cast votes; fewer than 10 have betrayed their respective trusts, the last occasion by West Virginia's Margaret Leach in 1988.

On the other hand, only 24 states and the District of Columbia feature laws compelling electors to vote for the presidential candidates of their parties. The U.S. Supreme Court upheld the constitutionality of pledged elector laws enacted by states in Ray vs. Blair (1952). Moreover, only five of that number penalize violations. And in 1968, North Carolina elector Lloyd W. Bailey, who had been chosen as a Republican, apostatized in favor of George Wallace instead of Richard M. Nixon. That betrayal occasioned a congressional challenge led by Sen. Edmund Muskie, Maine Democrat, and Rep. James G. O'Hara, Michigan Democrat. Acting under the federal Electoral Count Act (ECA) of 1887, the pair insisted before both the House and Senate that Mr. Bailey's vote for Mr. Wallace was not "regularly given." The ECA provides that the two chambers "concurrently may reject the vote [of an elector certified by a governor] when they agree [by simple majorities] that such vote … ha[s] not been … regularly given" according to state law.

At the Jan. 6 joint session of Congress summoned to count the electoral votes, the Senate and House proceeded to separate sessions to consider whether Mr. Bailey's ballot should be recognized. The two bodies rejected the Muskie-O'Hara challenge by margins of 58-33 in the Senate and 228-170 in the House.

The Bailey precedent, however, does not bind succeeding Congresses. Its persuasive value is deflated because the outcome of the Bailey dispute was known at the time to be irrelevant to the election of Nixon. Furthermore, faithless electors seem guilty of political fraud, breach of trust or intentional misrepresentation under state law. They are selected by political parties because of their professed loyalties to particular presidential candidates. To act otherwise would seem a violation of state common law in the 26 states that have declined to pronounce by statute against such political treason.

In addition to political parties, faithless electors defraud voters in every state. Their reasonable expectation is that presidential votes will be faithfully echoed by a state's slate of electors. That expectation is fortified by the practice in 42 states to exclude a candidate's list of electors from the ballot. Thus, when the 107th Congress convenes on Jan. 6, the Republican-controlled House and Senate might reasonably reject any faithless elector vote for Mr. Gore on the theory that it had not been "regularly given" under state law as mandated by the ECA.

If there were any question on that score, Congress could swiftly amend the ECA expressly to prohibit such a betrayal of trust, and to apply the amendment retroactively to the 2000 election. Its constitutional power to do so to preserve the presidency from any taint of illegitimacy seems incontestable. As the Supreme Court explained in ex parte Yarborough (1884): "If this [national] government is anything more than a mere aggregation of delegated agents of other states and governments, each of which is superior to the general government, it must have power to protect the elections on which its existence depends from violence and corruption. If it has not this power it is helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption." And writing in Oregon vs. Mitchell (1970), Associate Justice Hugo Black declared that "it is the prerogative of Congress to oversee the conduct of presidential and vice presidential elections and to set the qualifications for voters for electors for those offices." He emphasized that "inherent in the very concept of a supreme national government with national officers is a residual power in Congress to insure that those officers represent their national constituency as responsively as possible. This power arises from the nature of our constitutional system of government and from the Necessary and Proper Clause."

Should not Congress by statute quickly outlaw Benedict Arnold electors for the ages?

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