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Wednesday, November 06, 2019

Can Presidential Electors be Computers?

There are two common criticisms of the Electoral College. One is that sometimes a person who loses the national popular vote can still become president. The other is that presidential electors are not bound by the vote of their state and can, in close elections, change the result.

Let's think a little about the second point. Suppose a state with 10 electoral votes designated 10 computers as its presidential electors? The computers are told to vote in accordance with whatever state law says about presidential elections (e.g., whomever wins the popular vote in the state gets all of the electoral votes). They execute the program and send the votes to Congress. Would such a state scheme be constitutional?

Maybe. The Constitution says who cannot be electors (members of Congress and any person "holding an Office of Trust or Profit under the United States") but says nothing about who or what can be an elector. The Electors are then instructed to meet and vote. Can a group of computers meet? Sure they can. That just means "put them in the same room" or network them together.

Can they vote? Sure they can, unless vote means "exercise discretion." The last point is not so clear to me. The recent Tenth Circuit opinion on presidential electors suggested that giving them the power to vote meant that they could not be bound by a state to make a particular decision. Voting implies a free choice. A free choice is not compatible with an automaton. But is the Tenth Circuit correct in putting that sort of weight on the word vote in the Constitution? What if artificial intelligence is programmed in a way that allows some minimal level of discretion? Is that good enough? Just food for thought. 

 

Posted by Gerard Magliocca on November 6, 2019 at 02:08 PM | Permalink

Comments

hardreaders,

It seems with all due respect, that you are so busy with robots and anti robots and alike, that you can't even distinguish between, a dish, fish, and satellite dish.Let alone, human one, and robotic one. Give it a break.Get rest.

Get a grip. Slight vertigo.But soon, it will all be over.

See you around.....

Posted by: El roam | Nov 7, 2019 11:11:38 AM

Dear Prof. Magliocca,

Thank you for this intriguing proposal. I do just want to flag that I made a proposal of this very sort about 2.5 months ago in response to a Volokh Conspiracy posting about the Tenth Circuit decision.

https://reason.com/2019/08/21/states-may-not-cancel-votes-of-faithless-presidential-electors/#comment-7903811

As to your third and fourth paragraphs considering potential objections to the proposal, I think a more fundamental question than whether computers can "vote" is whether computers are eligible in the first place. My VC posting made some tongue-in-cheek arguments for computers being eligible, but it seems like there are some decent arguments going the other way based on the relevant provisions, especially Art. II, § 1, cl. 2. For example, the language you cite in the third paragraph seems to take as a given that potential electors are natural persons. It then excludes specific subsets from that initial set, i.e., Congresspeople and persons holding U.S offices of trust/profit. Likewise, the fact that the number of electors is tied to the number of the state's Congresspeople -- emphasis on people -- again suggests the same requirement of being natural persons. There is also the requirement that electors not vote for at least either a President or Vice President from the same state that the electors "inhabit." And, albeit in a quite different context, the Court did say in KSR v. Teleflex that a person of ordinary skill is not an automaton (more t-in-c here, but couldn't resist).

Of course, the bigger threshold question here is who has standing to challenge a state's appointment of so-called "robo-electors"? Probably the losing candidate, assuming the robo-elector votes would make a difference in the outcome.

Here are some other related, and potentially interesting scenarios to ponder. To achieve more obedient electors, while still staying in the realm of natural persons, how about appointing small children? Going in a totally different direction, what about appointing non-citizens, or even foreigners living in other countries?

Finally, this post does not account for whatever "El roam" said because, in keeping with my usual practice, I automatically disregard anything from that account (which, relatedly, I'm not convinced is a natural person either).

Posted by: hardreaders | Nov 7, 2019 11:01:41 AM

An expert can program a computer to do whatever they want. So the person who programs the computer has a lot of power here. Also, hackers, Russian and otherwise. Imagine the results come back and the computers have all voted for Putin? I mean, the electoral college decision is final.

Posted by: Ahnold | Nov 7, 2019 6:36:11 AM

Here in the Supreme court ( Ray V. Blair):

https://cdn.loc.gov/service/ll/usrep/usrep343/usrep343214/usrep343214.pdf

Posted by: El roam | Nov 6, 2019 3:29:25 PM


Interesting, but there are some issues here it seems. The respectable author of the post,has ignored the ruling of the Supreme court. I quote from the: " National archives and records administration" as follows:

" 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."

And more ( from there):

"No Elector has ever been prosecuted for failing to vote as pledged."

And finally:

" Throughout our history as a nation, more than 99 percent of Electors have voted as pledged."

Here:

https://www.archives.gov/federal-register/electoral-college/electors.html

One may find great article and links therein to petition to the Supreme court in that issue ( recently in 2016 ) here in Jurist:

https://www.jurist.org/news/2019/10/supreme-court-asked-to-decide-whether-electors-must-vote-for-state-popular-vote-winner/

So, finally, one needs to deal first with pledge to vote. Can a computer give pledge,and what is the meaning of it, in digital terms ( hell of issue by itself).

I shall find maybe later the ruling of the Supreme court, and put it here.

Thanks

Posted by: El roam | Nov 6, 2019 3:23:03 PM

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