Dec 24, 2016
Consider The Elector: Moral Courage In Maine
Tonight I had a very informative YouTube discussion with David Bright, the Elector from Maine who voted for Bernie Sanders on the first ballot Monday, before (per previously-arranged agreement, it turns out) voting for Hillary on the second ballot. It was a slightly tortured decision for Bright to ultimately vote for Hillary — he spent months working tirelessly for the Bernie campaign, and couldn’t even bring himself to vote Hillary on November 8, despite living in a consequential swing state.
The reasons Bright did what he did largely come down to the peculiarities of how the Electoral College functions in Maine. First of all, it’s only five people total. So the dynamics between those specific individuals is going to be operative in terms of how the meeting is governed, how disputes are adjudicated, and so forth. Bright made known in advance to his colleagues that he planned to vote Bernie, so the Secretary of State and fellow Electors had ample time to plan how to handle it. Basically, they collectively arrived at an amicable solution. Because Bright’s main goal was to transmit a message — encouraging Bernie supporters to stay engaged in electoral politics, especially the disillusioned youth — he agreed that merely voting for Bernie once was sufficient for his purposes. If he had persisted in voting for Bernie on multiple ballots (as would’ve been his right) the College could have eventually motioned to have him ejected. At that point, because Maine does not have alternate Electors, the Electors could’ve voted to instate some other random person (it literally could’ve been a guy off the street) who was willing to vote for Hillary.
But, here’s the thing. If Bright was willing to get acrimonious, and really see the thing through, there’s a decent chance that he could’ve gotten the Bernie vote counted anyway, notwithstanding its ostensible violation of statute. It’s ultimately up to the discretion of the Secretary of State and the President of the Electoral College as to how the votes are tabulated. So, Bright could’ve cast a technically “illegal” vote, and the vote could then be counted despite being illegal. Bright might subsequently face legal repercussions, but the vote is nevertheless counted. So the decision to “invalidate” the vote was an essentially procedural one, not one made with the force of criminal law.
One thing people don’t really get, and I admit I didn’t fully get until witnessing the Pennsylvania meeting this week, is that the Electors are a body of elected officials, and they can execute their “college” however they see fit, as long as it’s within the parameters of state statute (most of which are pretty vague, and enforcement is an open question). So everything that happened in Maine hinged on the personal dispositions of the individual electors and the Secretary of State, some of whom have political considerations to bear in mind, whether in terms of their future prospects (the ME Secretary of State is a rumored gubernatorial candidate) or within their respective party structures.
Bright is one of the few people in the country who’ve ever had standing to challenge the Constitutionality of these laws. I think there’s a reasonable case to be made that he’s an aggrieved party; he has standing to challenge Maine’s statute penalizing electors for not voting according to the outcome in their locality (whether district-level or at-large.) Some enterprising lawyer who wants to probe this area of law would be well-advised to contact Bright. Notably, Bright acknowledges that his casting of a vote for Bernie on the first ballot constituted commission of a misdemeanor offense, punishable by 6 months in jail and a $1,000 fine. If a prosecutor actually charged him (highly doubtful) the ensuing case would delve into a fascinating, largely-unexplored area of law that could well make its way to the U.S. Supreme Court. Note that even though Bright voted for Hillary on the second ballot, his first-ballot vote was still technically criminal.
There’s no sign yet at all that Bright will actually be prosecuted, but Michael Baca of Colorado may not be so fortunate. He was ejected for refusing to vote for Hillary, and according to the latest reports his matter has been referred by the CO Secretary of State to the state Attorney General, which means he may well be under criminal investigation. What’s clear is that this unusual Electoral College cycle has produced multiple avenues through which the Constitutionality of the process can be explored.
Whatever your views on the Electoral College (which Bright actually favors) I think you ought to desire exploration of the Constitutional precepts underlying it, especially state laws which purportedly “bind” Electors to vote a certain way. The truth is that Electors are Elected Officials. Although I think his larger mission was bonkers, Larry Lessig was correct to observe that Electors are not merely “cogs in a wheel” — they are within their legal rights to exercise individual discretion, even if doing so on a large scale to thwart one specific candidate would’ve been utterly unprecedented and caused a national crisis. This area of law is extremely murky, and clarification ought to be sought where possible. Because of Bright’s principled stand, there might be a way.
It’s hilarious to me that Bright might not have taken his stand but for the concerted effort by Lessig and others to convince Electors to “vote their conscience.” These people’s aim was to get Electors to abandon Trump, but what they ended up doing was convince a bunch of Democratic electors to abandon Hillary. Bright claims that the one Elector who did successfully vote f0r Sanders, in Hawaii, was inspired to do so after viewing his speech in the Maine Statehouse.
Anyway, all other things being equal, I think Bright did exhibit some degree of moral courage. He opened himself up to state reprisal to make a political statement that is grounded in sound reasoning. And in doing so he evidently had a trickle-down effect; others were inspired by his stand to take their own. There’s a lesson in there somewhere.
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