Prima Facie Unconstitutional: Texas’ Efforts to “Bind” Electors

Most of you probably remember Dr. William Greene as the “faithless” elector who voted for Ron Paul last November.

Dr. Greene is back in the news again. On Monday, March 27, 2017, the Elections Committee in the Texas House of Representatives met to consider four bills related to “binding” Texas’ presidential electors in the Electoral College (plus one other bill dealing with threats against Electors). Among those testifying against the bills were Tara Ross, Matthew Stringer, and Dr. Greene.

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College (2d ed. 2012) and a co-author of Under God: George Washington and the Question of Church and State (2008) (with Joseph C. Smith, Jr.).  Her latest book, We Elect A President: The Story of our Electoral College, was released in September 2016. Her work has been published in several law reviews and newspapers.
Tara is a retired lawyer and a former Editor-in-Chief of the Texas Review of Law & Politics. She obtained her B.A. from Rice University and her J.D. from the University of Texas School of Law.
In summarizing her testimony Ms. Ross wrote:

“I am against the bills. (A) They are most likely unconstitutional. (B) Bad facts, as they say, make bad law. 2016 was an aberration and should be treated as such. We are all happy that our electors almost always vote in accordance with the outcome of the popular vote. Historically, the system has been VERY stable in this regard. However, there are certain emergency situations in which we’d be happy that our electors had more flexibility. (We don’t want to bind our own hands, for instance, if a presidential candidate has a sudden health problem.) Effectively: We don’t need to legislate solutions for a problem that doesn’t exist. We’ll just hurt ourselves in the long run.”

Matthew Stringer was a Texas elector like Bill. Also like Bill, Donald Trump was not his personal choice for President of the United States. Unlike Bill however, Matthew did end up voting for Trump in the electoral college because that is what he promised the people he voted for that he would do. However, despite his own vote for Trump, he did join Ms. Ross and Dr. Greene in testifying against bills that would try and electors to vote according to the popular vote. Mr. Stringer argued that, though he decided to vote for Trump, that is a decision that the framers of the constitution left to electors to make.

While representing himself only, Dr. Greene is an Assistant Professor of Political Science, and Assistant Chair of the Political Science Department, at South Texas College, who has been teaching about the Electoral College for 25 years.

During his testimony, Dr. Greene said (in part):

“I voted for Ron Paul in this particular election. I did not do it because of huge problems with the nominee of the party; I did not do it because of the 100,000 emails that I received from people around the country, demanding that I vote for the popular vote winner. I did it because I understand what the Constitution says about the Electoral College . . . What the Founders wrote, very clearly and specifically, and what they intended, is very clear in their writings separate from the Constitution, as well as at nominating conventions — the people that spoke on the process for electing our President in the Electoral College manner. I can say, without hesitation, that these bills — this one and the other ones that are being presented today — are prima facie unconstitutional. The Electoral College is one of the few remaining vestiges of the federal republican form of government that our Founders set up in the U.S. Constitution, and it’s the Constitution that we should be most concerned with, and not knee-jerk reactions to the events of the day. Those authors of that document were quite clear that Electors are to be free agents, capable of choosing whomever they believe to be the best qualified person in the country to be our chief executive officer. If you want to statutorily bind presidential Electors, you might as well statutorily bind members of the Texas House of Representatives while you’re at it. When the people vote YOU in, they have no control at that point, constitutionally, over your vote. They can vote for someone else in the next election, but they can’t force you to vote a certain way. In the same way, when the people vote in Electors, they have no control over them constitutionally. They can vote for someone else in the next election, but that vote by the Elector in the Electoral College is to be a free vote, and not “bound”. While twenty-nine States, including the District of Columbia, may have laws, those laws have never been tested constitutionally, and when they finally are — and I hope Texas is not one of them that has to go to the Supreme Court — but I have no doubt the Supreme Court will strike down those binding laws.”

Those opposing the proposed bills got plenty of push-back from legislators on the committee – particularly Dr. Greene and particularly from Representative Pat Fallon. Below is an exchange between the two, when Representative Fallon asked:

Q: What would have happened, do you think, if you had said to the folks — when they were trying to decide who they were going to elect as the presidential Elector for their Congressional District — if you had said to them very straightforwardly, “I may vote for our presidential nominee, and I may not. I don’t know yet; it’s gonna be up to me and how I perceive the Constitution” — do you think you would have… ”

A: I don’t have any idea what would have happened if I had…

Q: Do you think you would have won?

A: I have no idea.

Q: I suspect that you probably wouldn’t have been chosen…

A: Well, you can “suspect” all you like. The fact is that when the Congressional District caucus selected me to be one of the nominees to Elector, I went on and, on November 8th, the people of Texas elected me an Elector, just like they elected you to be a Representative. The people of Texas, at that point, are being represented, in a sense, by you and by me — but the people of Texas can’t tell you, “You must vote this way.” You wouldn’t dream of putting “binding” legislation in for legislators like yourself that says, “You must vote this certain way.” In the same way, you should not dream of putting in laws that would bind Electors in the Electoral College. It’s unconstitutional, and really, unethical.”

(You can watch Bill’s entire testimony here and and read the full transcripts here)

As of this writing the matter is still pending. None of the binding bills were voted on at that meeting. If the Chair wants them to move forward, she will have to bring them up in a future meeting.

It is unclear how the state of Texas would even enforce the proposed law where it says: “Is not valid and is not considered a vote cast by an elector . . . ” This writer can foresee them fining and jailing after the fact, but not how they can stop the vote from being counted:

“Each state’s electors must complete six Certificates of Vote. Each Certificate of Vote must be signed by all of the electors and a Certificate of Ascertainment must be attached to each of the Certificates of Vote. Each Certificate of Vote must include the names of those who received an electoral vote for either the office of president or of vice president. The electors certify the Certificates of Vote and copies of the Certificates are then sent in the following fashion:

One is sent by registered mail to the President of the Senate (who usually is the incumbent Vice President of the United States); Two are sent by registered mail to the Archivist of the United States; Two are sent to the state’s Secretary of State; and
One is sent to the chief judge of the United States district court where those electors met.”

Since there is one sent directly to the US Senate, even though the state is sent a copy, there is no mechanism by which the state may stop the vote from going to the US senate. Last November, Dr. Greene received criticism for his vote for Dr. Paul after he announced his intention, soon before casting his vote. But the ballots are cast by secret ballot and there is no obligation on the part of an elector
to announce his or her intentions beforehand.

This Thursday (4/20), activists will be lobbying at the Texas state capitol and testifying against a Senate bill that has been introduced: SB 394, the “Texas Elector Accountability Act”. The goal of this unconstitutional bill is to bind Texas’ Electors in the Electoral College — forcing them to vote for the presidential and vice presidential party nominees whose slate of Electors won the most votes in the state on general election day.