Electoral College Insurance: Will Super Pacs Target "Faithless" Electors and Ohio's Legislature?

Nancy Suhadolnik of Strongsville, Ohio, votes in early voting Tuesday, Oct. 4, 2011, in Cleveland. Tuesday was the first day
Nancy Suhadolnik of Strongsville, Ohio, votes in early voting Tuesday, Oct. 4, 2011, in Cleveland. Tuesday was the first day of early voting for the Nov. 8 election in Ohio. Ohio is one of 32 states that allow any voter to cast an early ballot by mail or in person without a reason. (AP Photo/Tony Dejak)

There are many reasons for Obama supporters to redouble the strongest "get out the vote" effort possible to insure a sizeable victory margin. Barack Obama needs to have a strong hand for the immediate fiscal cliff fix, in subsequent debt ceiling negotiations, and to fill long-blocked appointments needed for a second term reboot.

Electoral College Vote Is December 17.

The number one reason to work for a sizeable Obama electoral college victory margin is for insurance against Citizens United-authorized Super Pacs which are prepared to exploit and challenge a close electoral result. The electoral college vote happens Monday, Dec. 17 which is why every vote counts on Tuesday, Nov. 6 to insure a sizeable Obama victory margin.

As I remind in a recent Jurist commentary, no American will actually vote for Barack Obama or Mitt Romney (or Virgil Goode or Gary Johnson) on Tuesday. Rather, in 50 separate state-run elections, Americans will only choose a slate of electors "pledged" to vote for a candidate in the December electoral college voting. Any one of the 538 electors is a constitutional "free agent" who may vote for anyone she chooses on the "first Monday after the second Wednesday in December."

Media attention has already focused on several close-election scenarios: a Bush v. Gore redux; popular vote v. electoral college vote disparity, or a 269-269 electoral tie (or non 270 majority) defaulting the selection to the 113th House.

However, two other close-election scenarios present dangerous opportunity for Citizen United authorized Super Pacs to commit Grand Theft White House -- quite literally but also quite constitutionally.

Super Pac Attack on State Electors before Dec. 17 Vote.

After the Supreme Court's ruling in Citizens United, individuals and corporations are free to spend unlimited amounts (hundreds of millions) to influence the 538 individuals who actually choose our president. There have been over 150 electors, throughout our history who have broken their pledge and exercised their "free agent" franchise right. In one presidential election, over 20 Virginia electors went faithless as a block. In a very close election, it would only take a few electors persuaded to vote for anyone else (their spouse, neighbor or fave celebrity) to deny a 270 majority to Obama (resulting in a 113th House selection) to put Mitt Romney in the White House. We will not know until all pledged electors have voted in state-by-state proceedings on December 17, 2012.

Super Pac Lobbying of Ohio's Republican State Legislature to Void the Election and Directly Appoint the Romney Slate of Electors.

The boldest Super Pac move would be to lobby a state legislature to take the selection of the state's electors away from the voters. The Constitution gives exclusive power to state legislature over electoral appointment methods. Any state legislature could preemptively cancel or void the results of the November election and directly appoint their state's electors.

The Supreme Court simply restated, in Bush v. Gore, the Electoral College truth:

The individual citizen has no federal constitutional right to vote for electors for the President of the US unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.

And the Supreme Court left no doubt about take-backs: "The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors." If Mitt Romney wins the popular vote but not the electoral count, imagine an all out effort by GOP Super Packs to target the legislature of an electoral rich swing state that had gone for Obama.

As I detail in the Jurist essay (published by the University of Pittsburg School of Law), consider the hypothetical in which Obama narrowly wins Ohio which in turns gives him a small electoral college tabulation victory:

By high noon on Wednesday, November 7, the GOP majority in the Ohio House of Representatives and Senate void the election results. The state legislature, through a simple joint-resolution, directly appoints the Romney-pledged slate of 18 electors. (In our hyperpartisan age, the hypothetical writes itself.)

Republican Secretary of State Jon Husted and Treasurer Josh Mandel could aggressively support the elector appointment by alleging voter fraud, early vote irregularities and military vote suppression. Husted could proclaim that Ohio had taken back its electoral process from federal judicial control. Governor John Kasich (whose signature is not needed for the joint resolution), Senator Rob Portman and Representative John Boehner could each humbly defer to the will of their Ohio legislature. They would each rightly reference the US Constitution.

Just a law prof's best, worst-case hypo? Hopefully. Thomas Mann and Norm Ornstein describe in "It's Even Worse Than It Looks," how America has entered an age of "asymmetric partisanship" in which Republicans reject established political norms. The extreme fringe of the GOP appears willing to "[destroy] everything that they cannot control." (apologies to poet-laureate Leonard Cohen). It may be naive for Obama supporters to think that Karl Rove and Grover Norquist will allow Mitt Romney to concede.

Thus, every vote does indeed count on Tuesday. Every vote is needed to insure an Obama victory margin beyond Super Pac attack, litigation, manipulation, or corruption. The actual presidential selection is on Monday, December 17, 2012.

Victor Williams is an attorney in Washington D.C. and clinical assistant professor at Catholic University of America School of Law.