opinion

Nelson: Who casts Tennessee’s electoral votes, and why it matters now

By , Daily Memphian Updated: May 04, 2020 9:31 AM CT | Published: May 04, 2020 4:00 AM CT
Michael Nelson
Daily Memphian

Michael Nelson

Michael Nelson is contributing editor and columnist for The Daily Memphian, the political analyst for WMC-TV, and the Fulmer professor of political science at Rhodes College. His latest books are “Clinton's Elections: 1992, 1996, and the Birth of a New Era of  Governance" and “The American Presidency: Origins and Development, 1776-2018.”

The votes that count in presidential elections like the one this fall will be cast by electors chosen by each state. Democrats learned this the hard way in 2000, when Republican George W. Bush won a 271-266 victory in the electoral college even though Al Gore of Tennessee outpaced him by a half-million in the national popular vote. They relearned it in 2016 when Donald Trump was elected despite Hillary Clinton’s even larger popular vote majority.


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Can you name a single one of these electors from 2000, 2016, or any other presidential election, ever?

Don’t feel bad if you can’t because who they are has never really mattered. Every elector in the history of Tennessee — all 611 of them, spanning 55 elections — has voted for the presidential candidate to whom he or she was pledged.

This year might be different.

For one thing, Trump and Joe Biden are the two oldest candidates ever to run for president. Biden is 77. Trump turns 74 next month. 

They are also the first presidential candidates chosen in a year of pandemic, with people their age especially vulnerable to the disease’s worst consequences.

To be blunt, whether it’s Trump or Biden who prevails in the Nov. 3 election, he could die or become incapacitated before the electors gather in the various state capitals on Dec. 14 to cast their votes.

In the case of Tennessee, a politically bright red state, these will almost certainly be Trump electors. If he dies or suffers a disabling illness, each of them will have to make an independent judgment about whom to vote for instead. 

That’s the first reason we need to pay attention to who Tennessee’s electors are this year.

Here’s another, less gruesome reason grounded in a case that will be argued before the U.S. Supreme Court on Wednesday, May 13: Chiafalo v. Washington.

The case involves so-called “faithless electors,” those who were elected to support the nominee of their party and then broke that pledge by voting for someone else.

Historically, faithless electors have been rare. In the 13 presidential elections from 1964 to 2012 there were six, never more than one per election. That’s one out of 538, the total number of electors chosen by all the states.

In 2016 alone, there were seven faithless electors. And there would have been more if a last-minute campaign to persuade Trump-pledged electors to vote for Clinton had its way. 

Colorado and Washington State are among the 30 states whose laws require electors to vote for the candidate to whom they are pledged. Tennessee is another but, like most states with such a requirement, it assigns no specific penalty to an elector who violates it. At most, says Julia Bruck of the Tennessee secretary of state’s office, a violation could be treated as a Class C misdemeanor, the legal equivalent of public intoxication.

Colorado law, on the other hand, states than any elector who attempts, as one did in 2016, to vote for someone else — in this case someone other than Clinton, who carried the state — will be replaced on the spot by a different elector. Washington State enforced a statute that actually imposed a $1,000 fine on the four Clinton-pledged electors who denied her their votes. 

The electors who were punished by these two states sued, claiming that the Constitution allows them to exercise their own judgment and that no state law can deny them that right.

The Supreme Court will hear arguments next week and probably will hand down a decision in late June, well before most state Republican and Democratic parties choose their slates of electors for the 2020 election.

My guess is that the court will rule in favor of the electors who were punished, rendering the statutes in Colorado, Washington, Tennessee and 27 other states unconstitutional. Conservative “originalists” on the court will argue that this is what the framers of the Constitution intended. Liberal justices will join with them because they secretly hope some Republican electors who are legally unbound will turn on Trump.

I could be wrong, but if I’m right, that’s another reason we need to know more about the Tennessee electors who will actually vote on our behalf this fall.

That isn’t easy to do. Some may remember when Tennessee was one of a handful of states that actually listed the names of the electors pledged to each presidential candidate on the ballot.

Starting with the 2000 election, in a misguided move to unclutter the ballot, that information was removed. All voters see now is that they are casting their vote for “Electors for...” followed by the names of each party’s nominees for president and vice president. 

However concealed their identities may be, these electors have names. In 2016, the Trump elector who voted on behalf of the 9th Congressional District was Drew Daniel. The elector from the other district that includes part of Shelby County, the 8th District, was Shannon Haynes.

With all due respect neither they nor the other nine Trump electors from Tennessee are household names. They were chosen by the Tennessee Republican Party’s executive committee. As John Ryder, a local Republican bigwig who was an elector himself in 1988 and 2004, told me, the usual basis for choosing electors is to honor “party guys who have been loyal to the party and can generally be counted on to do the right thing from the party’s point of view.” 

Haynes, for example, is the GOP executive committeewoman for the 27th state Senate district and treasurer of the state party. Daniel is the committeeman for the 33rd District. Faithful laborers in the Republican vineyard, their reward was to gather with the other Trump electors in the General Assembly’s House chamber in December 2016 and write down his and vice presidential candidate Mike Pence’s names on an official ballot, which was then tallied and sent to Washington.

I asked Daniel how he was chosen in 2016 and he told me exactly the same thing Ryder did about his own experience in previous elections: He got a call out of the blue from the executive director of the state GOP offering him the opportunity to be an elector. Daniel and Ryder both took the offer for what it was, a way of honoring them for their work on behalf of the party. No interview, no campaigning, no debate, no open process at all.

Will that approach be good enough in 2020, assuming it ever was?

Not if the Supreme Court frees all electors to vote as they please. Tennessee’s 2016 electors were bombarded with mail, emails and phone calls urging them to vote for Clinton, mostly from out-of-staters. If this year’s election is close enough, Ryder speculates, you might see efforts to bribe or even blackmail electors to change their votes.

And it certainly won’t be a good enough approach in 2020 if the presidential candidate who appears to have won the election dies or becomes incapacitated between Nov. 3 and Dec. 14 and electors are forced to vote for someone else.

Fortunately, there’s nothing stopping both political parties in Tennessee from considering a more thoughtful, open approach. Electors aren’t nominated until summer. In a month or so, says Republican Party chair Scott Golden, he’ll appoint a subcommittee consisting of executive committee members to recommend a slate to the full committee. In consultation with the Trump campaign, they’ll finalize their list of electors in August. Democrats use a roughly similar procedure.

All that to say that there is time to open the process in ways that allow people who wish to be electors to publicly put their names forward and for rank-and-file members of each party to offer their opinions about them.

Topics

John Ryder Joe Biden Donald Trump

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