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The 2016 presidential race raised interest in the Electoral College, and the role of states in the process

by Tim Anderson ~ January 2017 ~ Stateline Midwest »
For 40 years, Mary Murphy has been introducing legislation and casting votes that shape public policy in her home state of Minnesota. But the longtime state representative always had her eye on being part of another vote, and this past year, she finally got the chance.
In December, Rep. Murphy and nine other fellow Minnesotans met in St. Paul to make the state’s official votes in the U.S. Electoral College. A packed room of people — some of them high school teachers and students who had participated in a statewide mock election run by the secretary of state — watched the proceedings in the Senate Office Building.
“It was everything I expected, and more,” Murphy said a few days after casting her votes for Hillary Clinton and Tim Kaine.
The event had special meaning for Murphy because of her many years as a high school history and civics teacher. But for most people, in most presidential elections, the Electoral College is little more than an afterthought.
This time was different. First, for one of the few instances in the nation’s history, the winner of the nation’s popular vote (Clinton) lost the race for president. Second, between the Nov. 8 general election and the Dec. 19 Electoral College vote, some electors in states where Donald Trump won the popular vote were pressured to cast a vote for someone else.
This “faithless elector” movement, in turn, shed light on some of the state laws governing the Electoral College. For example, who chooses the electors? And are they bound to vote for the winner of the popular vote in their state?
In each of the Midwest’s 11 states, the choice of electors is left to the political parties. Murphy, for example, was part of the 10-elector slate chosen by Minnesota’s Democratic-Farmer-Labor Party. According to the National Association of Secretaries of State, Minnesota is one of the Midwest’s five states (along with Michigan, Ohio, Nebraska and Wisconsin) that has statutory language binding each party’s chosen electors to select the winner of the state’s popular vote.
One Minnesota elector tested that law in December, by casting a ballot for Bernie Sanders instead of Clinton. Per Minnesota law, that elector’s ballot was rejected, and he was then immediately removed from office and replaced with an alternate. But the real test to these laws would come if they were challenged as a violation of the U.S. Constitution, notes University of Kansas political science professor Burdett Loomis.
“That remains a gray area,” he says.
Specter of future ‘faithless electors’
In the wake of this year’s 2016 presidential election, one lingering question is whether a small number of “faithless electors” could someday sway a presidential election. Along with the uncertainty about the constitutionality of state statutes binding electors, about half the U.S. states don’t have such laws at all.
Imagine, Loomis says, a close race of the future in which an independent or regional candidate wins a few Electoral College votes.
That candidate’s few electors could essentially be “free agents,” either deciding the winner or choosing to send the presidential election to the U.S. House of Representatives. (Under the latter scenario, each state delegation in the U.S. House would cast a single vote for president.)
The “faithless elector” scenario also would seem to be more likely in a year like 2016, when the winner of the national popular vote loses the Electoral College — a real possibility in future elections, Loomis says, if Democrats keep winning by huge margins in highly populated states such as New York and California while Republicans prevail in most other states.
Loomis would prefer moving to a national popular vote, but he says the chances of abolishing the Electoral College (either via a U.S. constitutional amendment or changes in state laws or state constitutions) are slim, at best.
“For all of the talk and protests this year, and all the flaws you can point to with the Electoral College, it has delivered a legitimate winner for over 200 years,” he says. “There will again be a peaceful transition of power this time around.”
‘So proud to be a part of it’
In Minnesota, along with the teachers and students on-hand to witness the state’s official vote for president and vice president, protesters showed up at the Senate Office Building to voice their opposition to the Electoral College.
“Enough to irritate, but not enough to stop proceedings,” Rep. Murphy says.
And the day was a bit bittersweet for her as well. She hoped to be making history voting for the first woman president in the nation’s history; instead, Murphy was part of a process in which she knew her party, and her candidate, would be on the losing end. Still, she’ll never forget the experience: “It made me so proud to be a part of it. It was almost a spiritual experience for me. I think of it as being one of the caps of my legislative service.”


Few state legislators cast votes in Electoral College

The U.S. Constitution leaves it to the states and their legislatures to decide who will be in the Electoral College. States in the Midwest, in turn, have put the choice of electors in the hands of political parties. And in 2016, only a handful of those party-chosen electors were state legislators.
In December, among the region’s 108 people who cast Electoral College votes, only six were sitting state legislators: four in Illinois and one each in Kansas and Minnesota. A seventh legislator, Ohio Rep. Christina Hagan, had been selected by the state Republican Party; however, she resigned in advance of the vote. According to The Columbus Dispatch, her resignation came after a lawsuit was filed claiming that a state legislator could not serve as an elector. The reason: A provision in the Ohio Constitution which states that “no member of the General Assembly shall ... hold any [other] public office.”
Mary Murphy, a member of the 2016 Electoral College and the Minnesota House, says the dearth of legislators being chosen to serve as electors in her home state reflects today’s more-distant relationship between political parties and elected officials.
Years of work on behalf of Minnesota’s Democratic-Farmer-Labor-Party had preceded her first election to the state House in 1976. Today, she says, it’s much more common for people to choose to run first — prior to any involvement with a political party.