Although Al Gore's concession last week officially ended his quest for the presidency, it has not stopped some of his supporters from continuing their efforts on his behalf. Some are actively working to subvert electors pledged to George W. Bush, thereby giving Gore a victory in the Electoral College. If they are successful, it will be one of the most reprehensible acts in American political history.
By now, almost everyone must know that technically, the president of the United States is chosen not by popular vote, but by votes cast in the Electoral College. The Electoral College has 538 voters, with each state having votes equal to the number of congressmen and senators to which it is entitled (including 3 votes for the District of Columbia). To win the White House, a candidate must receive an absolute majority of votes cast in the Electoral College -- 270 votes.
With the final conclusion of the contest in Florida, Bush now has 271 electoral votes pledged to him -- one more than necessary to win. With Gore claiming 267 electoral votes, the 4 vote margin of victory in 2000 will be the second smallest in American history. Only the 185 to 184 Electoral College victory by Rutherford B. Hayes over Samuel Tildon in 1876 will have been closer.
The closeness of the Electoral College vote, however, raises the disturbing possibility that some electors may not vote as they are pledged. A switch of just three votes from Bush to Gore would throw the election to Gore, despite his concession, and make him the legal president of the U.S. A switch of just two votes would create a tie, sending the election to the U.S. House of Representatives.
The reason for this possibility is that electors are not bound to vote in accordance with their states. While it is true that 26 states and the District of Columbia have laws requiring electors to vote for the candidate certified as winning that state, in many cases, such laws are unenforceable or carry only minor penalties for violation. In any case, there are 24 states that have no laws binding electors, including Bush's and Gore's home states, Texas and Tennessee.
The idea that electors are free to vote as they choose dates from the earliest days of the republic. The Founding Fathers were deeply suspicious of pure democracy, and wanted the election of our most important public office to be insulated from the passions of the moment. The Electoral College itself is one layer of insulation, and the freedom of electors to vote as they please is another. (It is worth remembering that originally many electors were simply appointed by legislatures, without any popular vote for president at all in some states.)
The 12th Amendment to the Constitution essentially stripped electors of their independence. However, from time to time since then, a few electors have nevertheless exercised their autonomy by casting votes in a contrary manner. Such people have come to be called "faithless electors." In recent years there have been a number of them:
-- Henry Irwin of Virginia, who voted for Harry F. Byrd in 1960, rather than Richard Nixon, to whom he was pledged.
-- Lloyd W. Bailey of North Carolina, who was also pledged to Nixon, but voted instead for George Wallace in 1968. He later said that he would not have done so if his vote mattered.
-- Roger MacBride of Virginia, yet another Nixon elector, who cast his vote for Libertarian Party candidate John Hospers in 1972. A constitutional lawyer by training, MacBride had once written a book about the Electoral College, which he handed out to his fellow electors before casting his "faithless" vote.
-- Mike Padden of Washington State voted for Ronald Reagan rather than Gerald Ford in 1976.
-- Margarette Leach, a Democrat from West Virginia, voted in 1988 for vice presidential nominee Lloyd Bentsen because she thought he was a better man than the presidential candidate, Michael Dukakis.
Now a number of liberal activists are trying to exploit this loophole in the election law to reverse the election and make Gore president. A group misnamed Citizens for True Democracy has two Web sites devoted to the effort. One, www.votewithamerica.com, lists the names and phone numbers of every Republican elector, with instructions for how they can be harassed and intimidated into switching their votes from Bush to Gore. It even highlights the names of four electors said to be especially vulnerable to pressure.
Another effort is being run by former Walter Mondale campaign manager Robert Beckel. He has been joined by the liberal New Republic magazine and the far-left Nation magazine, which has on the cover of its Dec. 25 issue this headline: "Wanted: Three Republican Electors." Because Al Gore won the popular vote, they all say, electors would be morally and ethically justified in voting faithlessly.
To his credit, Gore has disowned these efforts, but if handed the presidency on Dec. 18, when electoral votes are formally cast, he would certainly be under enormous pressure to accept the gift that was handed to him. Of course, Republicans are making efforts to shore-up their electoral votes, but until every vote has finally been cast and certified there will remain a chance that faithless electors could still put Gore rather than Bush in the White House.
In general, I believe that the Electoral College system has served this nation well, and is much preferable to direct election of presidents solely through popular vote. But there is no denying that faithless electors are its Achilles' Heel. Those attempting to get electors to change their votes make no bones about the fact that abolition of the Electoral College is one of their goals in pursuing their efforts.
Although I grant the legality of electors voting contrary to their states, the effort to force electors to switch their votes is disgraceful and despicable. It is little better than jury tampering. Those involved should be ashamed of themselves.