How a Group of Lawyers Is Helping "Faithless Electors" Vote Their Conscience (Q&A)

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In the weeks following the election, there has been widespread speculation as to whether the members of the electoral college who are charged with voting for President-elect Donald Trump will do so on Monday.

One Texas elector, Christopher Suprun, already has vowed not to vote Trump in a New York Times op-ed, and electors in Colorado, California and Washington are petitioning the courts to overturn laws requiring them to vote in support of their state's winner.

People who break from the party's pledged candidate typically are called "faithless electors" — and this time around they have the support of a nonprofit group called The Electors Trust.

Harvard Law professor Lawrence Lessig, who ran for president as a Democrat in this election, California attorney Mark Lemley and Michael Hawley co-founded the organization to provide free and confidential legal help to electors who "wish to vote their conscience." 

The Hollywood Reporter asked Hawley to explain how the Electoral College is designed to work and why their pro-bono legal services are needed.

What is the purpose of the Electoral College?

The Electoral College conducts the actual vote for president and vice president. Its purpose is to unify and double check the general election, and if something went wrong, attempt to fix it.

Remember your social studies class? The U.S. Presidential Election has three steps: first, the primary election, to vet and choose candidates within different parties; second, the general election on Nov. 8, which is conducted in each of the 50 states simultaneously where each state votes for its representative electors; and third, the electoral college vote on Dec. 19 this year (it's the first Monday after the second Wednesday of December) to choose the president and vice president. The results of that vote are sent to Congress, where they are counted — and where any objections can be raised and dealt with. If a candidate has won more than the majority of electoral votes (270 now), the election is finished. But if no candidate wins a majority, Congress holds a vote: the House of Representatives votes for president from among the top three choices; and the Senate votes for vice president.

The point is, the "election" on Nov. 8 is indirect and chooses representatives — electors — who, about six weeks later, vote for president and vice president.

In a nutshell, how does the Electoral College vote on Dec. 19 work?

In each State, on Dec. 19, the chosen electors gather in their respective state's capitol and they vote for president and vice president on separate ballots. The electors sign, seal and certify six sets of electoral votes, and these are distributed to the vice president (for counting in Congress): two packets to the local secretary of state (for State archives), two packets for the National Archives, and one packet for the presiding judge (and a backup set, in case the vice president needs to replace missing votes).


What is a “faithless elector” and how rare is it for someone to become one?

That's a historical but also disparaging term. "Conscientious elector" would be more appropriate. This is one who votes differently from their pledged candidate. In our history, over 22 elections there have been 179 electors who have not cast their votes for president or vice president as prescribed by their state legislatures.

They are rare, but that's only because in most elections, the popular vote and the state vote and the resulting electoral totals all agree. Rarely, the candidate who lost the popular vote is nevertheless elected by the Electoral College (it has happened twice: Bush v. Gore in 2000, and Harrison v. Cleveland in 1888). But neither of those elections was comparable to the current dilemma. Bush v. Gore was essentially a tie decided by the Supreme Court; and Harrison v. Cleveland was a notoriously fraudulent election, where the mafia of Tammany Hall swung New York's electors to elect Harrison. And in both of those elections, electors could have flipped a coin to select a plausible candidate. Not so today.

Who founded The Electors Trust and why?

It was principally founded by Michael Hawley, Mark Lemley and Larry Lessig. It was founded in anticipation of an acute need: to provide electors with strictly confidential legal counsel and legal defense for the freedom of their electoral vote.

Approximately how many electors have contacted you for advice so far?

We are aware of dozens, and are working with them as rapidly as we can. But all are strictly confidential.

Why is having access to free, anonymous legal advice so important for electors, especially at this time?

Right now, if Donald Trump shoots someone on Fifth Avenue in front of witnesses, electors from most states are required to still vote for him. That can't be right. Yet binding of pledges is done in 29 states. It has never been tested in court. Most "faithless" or "conscientious" electors have paid a nominal fine (comparable to a speeding ticket). Nevertheless, an elector who votes their conscience (contrary to a pledge) may face legal attacks. The freedom of a vote is sacrosanct in our democracy, and may need to be defended.

Now, think about the current election. Trump lost the popular vote by a significant margin (2.8 million and growing), but he is projected to win the electoral majority by 37 votes, thanks to just a few states. This situation is a tinder box, and electors have been bombarded with thousands of emails every day. Also, electors are being pressured by their local attorney general or secretary of state to vote mindlessly, according to their pre-programmed pledge. And when an elector states publicly that he or she is unwilling to vote as pledged, the barrage is even more intense. There have been death threats.

So it is crucial for electors to know: They have the legal right, the constitutional duty and the moral obligation to, ultimately, vote their conscience. The Electors Trust will defend the freedom of their vote.

In how many states could electors who “vote their conscience” face penalties?

Twenty-nine states and D.C. have laws binding electors to pledges. But those laws do vary; some may call for a fine, others may simply nullify the vote.

Is there anything else you feel THR's readers should know?

Two things. First, the underlying "bug" in our modern sense of the electoral system is the notion of "winner take all" within states. It wasn't always that way. But in the mid-1800s, bigger states wanted to drive their preferred candidate into the presidency, so they chose electors who would vote unanimously. Smaller states had little choice, and to preserve their clout, they also adopted "winner-take-all" policies. The result is as dumb as driving a big truck down a one-way, one-lane dead end alley.

"Winner take all" is fundamentally at odds with the idea of "one person, one vote" — the bedrock of democracy. Second, this practice has meant that political parties now ruthlessly peck away at the electoral map, gerrymandering, redistricting, purging voter rolls, doing whatever they can in order to gain the most leverage in a handful of "swing" states. It's like watching vultures peck at a carcass.

The result has been to cast the Electoral College into an arcane, vestigial role — to see electors as little more than mindless cogs. But Justice Jackson in the Supreme Court (Ray v. Blair) about 60 years ago wrote: "No one faithful to our history can deny that the plan originally contemplated ... that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices."

The Electors Trust was established to ensure that electors could indeed function as free agents: as thoughtful citizens who put the needs of their country and their state above the wishes of their political party.

Second, I would reiterate something we all should remember: Donald Trump did not "win" the election on Nov. 8. Trump has not yet "won" the vote of the Electoral College: It hasn't happened yet. Technically, nobody is "president-elect" until after the Electoral College votes. Indeed, it may be that no "president-elect" is determined by the Electoral College, and the decision is left to Congress. But the news media, and even the White House, have been complicit in pushing this snowball downhill toward Washington. Nevertheless, it is, frankly, too soon for Mr. Trump to be measuring the drapes.

If ever there were a year when the Electoral College may think and act a bit differently, this is it. Mr. Trump has not shot anyone on Fifth Avenue; however, he has done just about everything but that. The revelations made since Nov. 8, which now are growing to include Russian tampering, are shocking. This may well cause Electors to vote against him in sufficient number to leave the decision to Congress. As Chris Suprun (the conscientious elector from Texas) put it: Mr. Trump has demonstrated his unfitness every day since Nov. 8.

So this is exactly why we have electors — as a safeguard to avert a disastrous appointment to the presidency.