The projected squeaker of the election outcome between Barack Obama and Mitt Romney has spawned a number of “what-if” scenarios.
Now, Catholic University law school Professor Victor Williams has added one more. In “A Dangerous Intersection: The Electoral College and the Fiscal Cliff,” a Nov. 3 commentary published at Jurist.org, Williams wonders what could happen if, as many others think is possible, the election is decided by the Electoral College but not the popular vote.
Williams notes that this is the first presidential election since the Supreme Court’s controversial Citizen United ruling authorized unlimited spending by Super PACs, independent expenditure committees that can raise and spend essentially uncapped amounts of money on behalf of a candidate or cause.
The commentary is distinguished by asking two unusual questions: Will Super PACs continue to fight a close election result past Nov. 6 until the Electoral College votes are taken on Monday, December 17? And if so, would they use their vast financial resources to influence potential faithless electors and lobby for direct state legislature appointment of electors?
Such speculation lies within Constitutional boundaries. An American presidential election does not decide the winner directly but instead chooses pledged electoral slates. The 538 electors then technically choose the president on Dec. 17.
But each elector has a constitutional right to vote for anyone they choose, major party candidate or not, if that person is constitutionally eligible for the office.
“There have been over 150 faithless electors throughout our history who have broken their pledge and exercised their ‘free agent’ franchise right. In one presidential election, over 20 Virginia electors went faithless as a block,” Williams writes.
“In a very close election, it would only take a few electors to be persuaded to vote for anyone else, their spouse, neighbor or fave celebrity, in order to deny a 270 majority to Obama, resulting in a 113th House selection to put Mitt Romney in the White House.”
A variant on the scenario could be for Super PACs to lobby a state legislature to take the selection of the state's electors away from the voters. The Constitution gives exclusive power to state legislature over electoral appointment methods. Any state legislature could preemptively cancel or void the results of the November election and directly appoint its state electors.
“If Mitt Romney wins the popular vote but not the electoral count, imagine an all-out effort by GOP Super PACs to target the legislature of an electoral rich swing state that had Obama has barely won,” wrote Williams.
Jurist.org is a Web-based legal news service from the University of Pittsburgh’s School of Law.
A shorter companion article was published on Nov. 5 in the online Huffington Post.