Richard Winger and Mark B. identify a revealing section of the Americans Elect corporate bylaws recently posted online by the states of Nevada and Florida. The Americans Elect corporation, which aims to arrange the election of its own candidates for President and Vice President of the United States, imagines a circumstance in which Americans Elect [“AE”] wins one or more states but not enough to win the presidency for itself. What will its designated electors do then?
Elector agrees that Elector shall remain unpledged until convening of votes for the Electoral College, with the exception of the following conditions:
a. Plurality or Majority Vote for AE Ticket: If the AE ticket receives more votes nationally than any other ticket, the Elector shall solely vote in the affirmative for the AE nominees and for no other candidate;
b. Coalition Agreement: If the AE ticket receives fewer popular votes nationally than the ticket of at least one of the major political parties but no party has attained a majority of the national popular vote and the AE delegates have convened in the Convention after the general election but before the Electoral College vote and endorsed a candidate of either major political party on such terms as may be reflected in the vote of endorsement, the Elector shall vote solely for the candidates as instructed by the Delegates and for no other candidate.
Under the law, of course, presidential electors are free to support whichever candidate they please. But according to the bylaws, Americans Elect will require its electors to sign a contract agreeing to the above plan or to pay a penalty of half a million dollars:
Failure to comply with this agreement shall result in the automatic termination of the Elector and substitution therefor with the alternate elector, in view of the national effort and costs to AE to attain ballot access for the AE ticket, which is not susceptible of easy calculation, the parties agree that the elector shall be liable to AE in the amount of $500,000 in liquidated damages if the Elector violates this agreement.
The second scenario envisioned by Americans Elect leadership, in which Americans Elect brokers a “coalition agreement,” only requires Americans Elect to win one state. Consult anelectoral college map for 2012 and think about the possibilities. If Americans Elect won a relatively small state in which independent candidacies have succeeded before, such as Maine with 4 electoral votes or Minnesota with 10 electoral votes, then it could throw the election to the Republican or to the Democratic candidate if the electoral vote margin between Republicans and Democrats is close. If Americans Elect won just one large swing state, such as Ohio, Pennsylvania, Florida or California, then its plan for brokering the election of the next President of the United States would be guaranteed. Americans Elect has already gained ballot status in multiple states, and it has been directing the majority of its resources to win access in the state of California with its 55 electoral votes.
For those who say “Americans Elect can’t possibly think they’ll win this thing. What do they want?” the bylaws provide one possible answer: a seat at the negotiating table in November and December of 2012, with the occupancy of the most powerful position in the world at stake. With the application of some careful strategy, the Americans Elect corporation could be in a position to obtain policy concessions of all sorts, even if it loses the popular vote disastrously.
In such a circumstance, the rules by which Americans Elect would choose a major presidential candidate to endorse is of central importance. If the rules give control to the Americans Elect delegate pool (which any registered voter — sort of — can join), then there would be some aspect of democracy to the endorsement. However, if the rules give primary control to the Americans Elect corporate leadership (which according to bylaw Article 4 appoints itself and cannot be removed by delegate vote), then the unelected leaders of this corporation would be in a position to decide the outcome of a presidential election — and to obtain favorable terms for tipping the outcome in one direction or another.