Against
Secret Ballots
Who
was Minnesota's faithless elector?
Timothy Noah
Slate.com
December 14, 2004
Minnesota has a long, squeaky-clean tradition of good government.
In the December issue of the Rake, a magazine serving the
Twin Cities, the journalist Albert Eisele observes,
The hallmark of the Minnesota Model is an essential
decency and pragmatic common sense, coupled with a rejection of
corruption and bossism, a distaste for extremist factions, a
belief in education as the key to economic opportunity and social
stability, a willingness to engage with the rest of the world, and
a deep-seated conviction that government exists to improve the
lives of all Americans.
But you can get too much of a good thing. The case of Minnesota's
mystery faithless elector is a timely example.
On Dec. 13, the nation's 538 presidential electors gathered in
state capitals around the country to perform their largely
ceremonial duties. I say "largely ceremonial" because it's
always possible that an elector will cast his vote for someone other
than the candidate he is pledged to. There has, in fact, been
electoral faithlessness in most recent presidential elections,
though it's never affected the outcome. Of the many idiocies of the
Electoral College, its vulnerability to faithless electors is
probably the greatest; and though 26 states have laws on the books
requiring in one way or another that electors vote in accordance
with their pledge, these laws have never really been tested, and are
probably unconstitutional. (Minnesota, in any event, is not one of
the 26.)
Article II of the Constitution says that electors must "vote
by Ballot," but it does not stipulate that the ballot be
secret; secret ballots didn't become the norm until the late 19th
century. In practice, electors in most states do not cast their
votes in secret; typically, they either submit signed ballots or
they cast their votes orally. (The latter is a technical violation
of Article II, but nobody seems to care.)
In Minnesota, however, electors cast their vote by secret ballot,
or at least they did so yesterday. (There's no explicit
secret-ballot requirement for electors under Minnesota state law.)
According to an Associated Press report, each of the state's ten
electors wrote the name of his candidate on a sheet of paper
measuring eight by eleven inches and then put the piece of paper in
a pine box. The electors did not sign their ballots. All ten of the
ballots ought to have had John Kerry's name written on them, since
all ten electors were pledged to Kerry, who took Minnesota, 51-48
percent, on Nov. 2. But one elector wrote John Edwards' name
instead. None of the electors would admit to having done it, and
it's possible none of them actually remembers having done it. (That
even a highly active Kerry supporter would have trouble remembering
his candidate's name a little more than one month after the election
is, sadly, plausible.) So Minnesota's errant elector is not only
faithless, but faceless.
In having its electors cast secret ballots, Minnesota was arguably
honoring the spirit of Article II. Nowadays, it doesn't make
much sense to require that electors "vote by Ballot"
unless that ballot is secret. And ballot secrecy has become a
keystone to democracy. It's the sort of thing good-government types
always approve of. But in this instance, Minnesota's scruples were
misplaced.
When a ballot is cast in secret in an ordinary election, the
result is good for democracy because no voter need worry about being
criticized or penalized over his choice. But when a ballot is cast
in secret in the Electoral College, the result is bad for
democracy, for precisely the same reason. We want electors
to worry about being criticized or penalized over their choice,
because electors aren't supposed to exercise choice in the first
place. Secrecy makes it impossible to know whether the elector did
what the voters sent him to do; it renders the Electoral College
unaccountable to the people.
In most instances, a secret betrayal won't affect the outcome.
Knowing the identity of Minnesota's faithless and faceless elector
would merely satisfy the public's curiosity (and perhaps alert party
officials that this person ought not be chosen for elector duty
again). In some instances, though, secret balloting by
electors can affect the outcome. In the election of 1800, George C.
Edwards relates in his book, Why the Electoral College Is Bad
For America, one elector contemplated a faithless
vote that--as with the phantom Minnesota elector--would have
replaced a presidential candidate with his running mate. In this
instance, though, the potential for mischief was serious. An
elector for New York named Anthony Lispenard insisted he be permitted to
cast his ballot in secret, apparently so he could switch his vote
from Thomas Jefferson to Jefferson's running mate, Aaron Burr,
without anyone finding out he had done so. In those days, votes were
cast separately for presidential and vice-presidential candidates, and
whoever received the second-greatest number of electoral votes took
the number-two spot. Burr was close enough to Jefferson's electoral
count that, had Lispenard followed through on this plan, Burr would
have been elected president. As it happened, Lispenard in the end
was pressured to vote, publicly, for Jefferson. The result was a tie
that tossed the election into the House of Representatives, which
eventually selected Jefferson.
There are good reasons to doubt the democratic legitimacy of
Jefferson's election, but they have nothing to do with faithless
electors.
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