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Above: Lake Geneva, Switzerland. At Montreux.

Fodderize v.t. 1. To break down individual components; to make fungible; to disregard difference; to render one easily substituted for another 2. To impose sub-quality goods or services upon, with little recourse 3. To cap role choices, hinder access to resources regardless of merit, and so avoid competition 4. To manage perception by propaganda-spin techniques, while concealing dispositive facts 5. To manipulate, lure, exploit, deceive

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Saturday, November 5, 2016

Faithless Elector rule. An elector may vote conscience, subject to State civil penalties that meet Constitutional standards.

I.  Post-election update: Re:  Workings of the Electoral College. Are the following consistent; how to enact, if no current specific provision in effect for interpretation: Further background, see https://www.archives.gov/federal-register/electoral-college/roles.html#electors

A.  An Elector may vote his or her conscience.  The right of Electors to vote their conscience shall not be denied.  The State may exercise its own options to ensure compliance with its rules, so long as those are Constitutional.  Trigger point:  See http://heavy.com/news/2016/11/faithless-electors-petition-change-org-fine-trump-hillary-clinton-by-state-crime-illegal-electoral-college-when-does-meet/  [Vet heavy.com for reliability in reporting, analysis -- I just found Wiki, must be more]

B.  State Recourse against Electoral College rogue voting: must pass Constitutional muster.
  • There shall be no automatic penalty that is contrary to Constitutional rights. No strict liability where the result is so onerous or arbitrary or punitive in this civil area as to violate the Constitution.  
  • A State that is winner-take-all may forego a vote entirely on the first ballot, as a means of countering an effort by a Faithless Elector to vote conscience on the first ballot.
  • All other Electors, from States not winner-take-all, may vote conscience on the first ballot, subject to the fines or penalties as are permissible.
  • A rogue Elector shall not be subject to criminal investigation or criminal penalty, loss of liberty or property. Rogue voting is not a crime.

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II.  Pre-election interest: Still relevant.  A State may forego an actual vote if it is a winner-take-all State, and such status was in effect and duly publicized at least 90 days prior to the Election.

A.  Overview:  The Electoral College faces the issue in a close election of the Faithless Elector.

How binding shall be a State's decision to consider itself winner-take-all. Does that entitlement to winner-take-all mean that Electors in such state do not need to vote at all, with their bound votes merely submitted for the count instead. In such case, can they then go off on a frolic of their own, liability-free for a second or later ballot, if neither candidate wins on the first ballot?   Must Electors vote on a first ballot even where they later disagree with their own pledge to follow the State's rules?
"The U.S. Supreme Court has held that the Constitution does not require that Electors be completely free to act as they choose and therefore, political parties may extract pledges from electors to vote for the parties' nominees."
See https://www.archives.gov/federal-register/electoral-college/electors.html 

Conclusion:  Lawyers, prepare to argue that winner-take-all requires no actual vote on a first ballot; the winner iis entitled to all those votes by fiat, without additional step or objection by individual Faithless Electors.  They have to wait until the second ballot.
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I.  Rules of the Electoral College:

It is useful to check the wording of the actual law or rule apparently applicable in any situation, before assuming a refusal of an elector to vote is a problem to anyone.


Totem pole hearsay says the elector says he will not vote as an elector. Is he required to vote at all in a winner-take-all state?  Photo: Off-road in Romania.

II.  Immediate issue:

News says, I read, that some Washington State elector refuses, in advance, to vote for Hillary Clinton even if she wins his State of Washington.  See http://bigstory.ap.org/article/d3a1c10593c44da58bb611ef09101214/washington-state-elector-says-he-wont-vote-clinton.

More news, informal:  This elector says, says Rachel Maddow in finest totem-pole hearsay tradition  [from this morning, at rerun of her Friday evening show], that the recalcitrant elector plans to pay the $1,000 penalty (where is that? where are the rules?) rather than cast his vote Hillary's way.

III.  Collect the information:

A.  Where are the rules for the Electoral College? Start at https://www.archives.gov/federal-register/electoral-college/faq.html

B. Is Washington a winner-take-all State? Yes. See site:
"48 states, including Washington, use a “winner-take-all” system; the presidential ticket that receives the most votes in the state are entitled to all of Washington’s electoral votes (emphasis supplied)."
C. If a candidate wins in winner-take-all, then there need be no act of voting by the individual electors of that state?  Looks that way.
If all that is so, then Yes. No need to take vote. The candidate is "entitled" with no further action specified.

III. Discussion.

A. Not so fast on strict construction of the meaning of a word. There are miles to go before we sleep,  in this our own electoral forest. Keep this site handy: the National Association of Secretaries of State. (NASS).  An issue may return to roost at the State level. Be prepared.
  • The Electoral College site suggests on its own a broader latitude, suggesting that a vote is indeed needed (despite the plain language otherwise).  So, if that holds, is the obligation of an elector merely a matter of good faith??
B.  The website indeed addresses what happens if an elector does not vote as pledged. Elector on a frolic of his own.

But that means a requirement to vote in the first place in a winner-take-all state, on the first ballot; which interpretation is contested here.  
The Magic Website and its term, Faithless Electors:
"Some state laws provide that so-called 'faithless Electors' may be subject to fines or may be disqualified for casting an invalid vote and be replaced by a substitute elector. The Supreme Court has not specifically ruled on the question of whether pledges and penalties for failure to vote as pledged may be enforced under the Constitution. No Elector has ever been prosecuted for failing to vote as pledged."
*****"Throughout our history as a nation, more than 99 percent of Electors have voted as pledged."
 See https://www.archives.gov/federal-register/electoral-college/electors.html.  
C.  The site even provides a tentative non-binding list of the kinds of fees and penalties a State may or may not exact from a Faithless Elector.  See site, and its own disclaimer against itself. Perhaps there is no penalty at all??  In Washington, the stakes are merely a party pledge and a thousand bucks.

So an Elector can throw an election by ante-ing up $1,000.00 in Washington State. Could happen. .

What good is a pledge otherwise in a winner-take-all state> 

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