by Jamal "Jim" Hattab

I believe I have a legal theory and a workable practical answer to how to help all Presidential Electors, even those in States that bar their "voting rogue": if the laws in a given State were to prove to breach the Federal Constitution, then all the Electors become free (as well as duty bound) to vote their conscience and, perhaps in addition, in accord with their better knowledge.

If the vote in the Electoral College needs to estopped, pending appeal, those State laws inconsistent with the Federal standard for Electors (read broadly, as the legislative intent provided in Hamilton's Federalist #68) offers Federal Constitutional grounds for arguing that States so barring their Electors from exercising their inalienable freedoms and duties to vote their consciences receive unequal legal protections, per the Federal Constitution, as compared to those Electors left free to exercise their own judgment (in those States which, on the other hand, allow this).

I view #68 in The Federalist (authored by Alexander Hamilton) as reflecting the intent of the Framers of the United States Constitution and, further, believe that, as a result, those entitled to vote in the Electoral College are DUTY BOUND to vote their consciences, and apply their best knowledge, whenever their respective Electoral Colleges in each State convene. However, it is now the case that some Electors are barred by the laws of their own States from so acting constitutionally.

To my mind, the looming Electoral College vote is- that is: if Hamilton in Federalist #68 is to be followed- both a constitutionally-enabled and Federally-legal DUTY of Civil Disobedience. ALL Presidential Electors (even those barred from doing so by their own State laws) may, thereby, be constitutionally and legally rendered free to vote their own consciences because this is not merely an issue for individual states: instead, it affects the Nation as a whole.

Obviously, to put this before the United States Supreme Court no later than Monday, December 19, 2016 and then have the High Court decide if this very Federal empowerment is an inalienable right and obligation possessed by the Presidential Electors seems all but impossible at this late date. However, I believe a different solution- itself also constitutional- is possible and that is seeking Presidential Pardon for any and all so-called 'rogue Electors' (those who do not vote, in the Electoral College, for the presidential candidate who has won the Popular Vote in their given State [or, in the case of Maine and Nebraska, Congressional District]).

The President of the United States certainly possesses the legal power to PARDON Presidential Electors who might desire to disobey their State laws in the performance of their own Federal Constitutional Rights and Duties as Electors. However, I also believe a Presidential Pardon may only issue AFTER a pardonable offense has already been committed (otherwise, the President would then be abusing his powers, if only by thereby encouraging Citizens of States to break their own State's laws). In letting it be known that he shall pardon ALL THE ELECTORS, JOINTLY & SEVERALLY, BY NAME (and ALL Electors must so be named, if only because, at least in some States, the ballots cast by the Electors must remain secret!) IMMEDIATELY AFTER the Electoral College concludes its duties, the President would thereby ensure the Federal equal protection of ALL members of the Electoral College.

This complete Pardon of all the Electors after the last State Electoral College adjourns would guarantee the Electors' voting could proceed without any legal duress: however, it must also be admitted that social intimidation wherever the Electors' votes are not kept private & confidential might prove harder to repel, whether by legal protection or otherwise. Yet, in pardoning all the Electors en masse, the President shall thereby enable and empower even those from States barring their own free exercise of constitutional (Federal) obligation and right from their consciences being chilled by even the 'merest' inconvenience of legal defense (actually, no slight effort) against subsequent prosecution in their home States.

In sum, the Electoral Colleges in the several States (and the District of Columbia) should proceed freely, as set forth under counsel of Federalist #68--but only if ALL members of the Electoral College proceed in free and clear accord with their own consciences and best knowledge. To accomplish this end, I put forth the following four-step proposal:

1. Although it would be tricky, from an optical point of view, couldn't the new President (or, for that matter, the outgoing one) simply pardon miscreants (Double Jeopardy prevents prosecution thereafter);
2. Where a state sets no legal penalty by statute, there's obviously no deterrent to a renegade elector, save for the optics (and fear of subsequent demonstrations, threats, etc.);
3. In most cases, the penalties are token fines, rarely enforced, probably not criminal, and, as such, could be covered by pro bono help from interested attorneys (for example, the American Civil Liberties Union and the like);
4. For any more serious penalties, go back to 1. above.

Jamal "Jim" Hattab e-mail: jjhattab@yahoo.com

RICHARD E. BERG-ANDERSSON comments on behalf of The Green Papers:

The only comment I will make in direct relation to the above is that Presidents tend to not exercise their Pardoning Power lightly (regardless of any and all negative reactions to the pardons they might, in fact, issue): therefore, I don't really know how a President might signal a willingness to issue a pardon (let alone if it is even politically expedient [here leaving the issue of constitutionality aside] for a President to even do so in the first place!) without, in fact, issuing just such a pardon and given the fact (as Mr. Hattab himself points out) that a President cannot pardon that which has itself not yet occurred; yet it would also seem to me that a President would have to so signal in order for those Presidential Electors who might wish to abandon their pledges (per the various and sundry results of the Popular Vote this past Tuesday 8 November) despite any and all State Law (not to also mention State political Party rules [here the rules of the political Party of the presidential candidate who won in that particular State (or Congressional District, where applicable)], themselves bolstered by State Law in many cases) to feel as secure in the free exercise of their rights and duties (in the manner in which Mr. Hattab sees them) as Mr. Hattab himself would like them all to so feel.

In the end, a Presidential Elector so abandoning his/her pledge (itself implied, if only through the wishes of the plurality of the ordinary voters as also freely expressed in the most recent General Election in that Elector's own State) to vote for the winner of the Popular Vote in that Elector's home jurisdiction is, as ever, fraught with risk- a risk, in this case, entailing potential legal jeopardy- that seemingly must always be exercised without any promise whatsoever of being able to either avoid or evade said legal jeopardy...

of such risk-taking, without any promise or prospect of deliverance from legal or social penalty, is Civil Disobedience itself, in fact, made (always remember: the Rev. Dr. Martin Luther King, Jr. himself once penned Letter from a Birmingham Jail!)

I will here only add that this issue of the "free agency" of Presidential Electors is a constitutional question which, to this very day, remains very much unanswered- #68 of The Federalist notwithstanding- as I myself pointed out in my essay 'May Electors Defect?', as well as in my response within a later exchange re: a 'vox Populi'.

I will here close with relevant excerpts from that which I wrote at the end of that later 'vox Populi' exchange (linked to in the preceding paragraph):

Congress remains, as it has ever been since the U.S. Constitution first became effective back on that first Wednesday in March 1789, the ultimate "umpire" and final determiner of the result of a Presidential Election... the real issue here is: would the ensuing Joint "Tabulation" Session of Congress count any such "faithless" Electoral Votes as "regularly given"- hence, valid- were there to be wholesale defections on the part of Presidential Electors across the country which then threatened to overturn the apparent result first seen within the first few days or weeks after a given first Tuesday after the first Monday in November of a Presidential Election year?

In short, under 3 USC 15 (the statutory provisions within Section 15 of Title 3 of the United States Code), Congress- when it meets in 'Tabulation Joint Session' on or about two weeks before next Presidential Inauguration Day (next 20 January)- ever retains its own constitutional power (and this regardless of what might, or might not, be the constitutional rights and duties of individual Presidential Electors in this same regard) to alone decide whether or not to even count the vote of a given Presidential Elector who has so been "faithless" (or, in Mr. Hattab's formulation, "gone rogue") in the first place...

so far, Congress- at least once (this back in early January 1969)- has even specifically voted to do so: but there is no guarantee at all that Congress might necessarily do the same in future (even in the nearest future!) and this, too, has to be well taken into account when considering the merits, or lack thereof, of Mr. Hattab's proposals above.