Electoral College wasn’t done deal in 1976. Will it be in 2016?

Around this time every four years state Sen. Mike Padden gets requests for interviews from around the country. Sometimes just a few; sometimes, like this year, more.

They want to talk about something that happened 40 years ago Monday, which made him, if not famous, the answer to a good presidential trivia question: “Who cast the first Electoral College vote for Ronald Reagan in 1976?”

Wait, you might say, Reagan wasn’t elected until 1980. But Padden, who was a member of the Washington Electoral College four years earlier, cast his vote for the former California governor in 1976. He likes to say that makes him “ahead of his time” although the technical term is “faithless elector.”

Padden, who represents Spokane Valley, wasn’t the first faithless elector in the nation’s history, but he was the first from Washington state. He remains the only faithless elector ever in Washington. That may change on Monday.

The term doesn’t come up after most presidential elections, but this year, after a rancorous campaign, there are calls for 2016 members of the Electoral College to do what Padden did in 1976: vote for someone other than the candidate a majority of their state’s voters selected – and change who will become the next president.

That wasn’t Padden’s intent 40 years ago when he voted for Reagan instead of then-President Gerald Ford, who won Washington state but lost his election bid. Before becoming the first, and so far only elector in Washington to deviate from the popular vote, he even checked to make sure Democrat Jimmy Carter was going to win. But that’s getting ahead of the story.

An ‘excellent’ 18th century system

America’s Founding Fathers had to balance many concerns when setting up a new federal government through the U.S. Constitution. Among them was to protect the rights of smaller states that could be overwhelmed by the larger states in a pure democracy.

Cornell Clayton, director of the Thomas S. Foley Institute of Public Policy and Public Service at Washington State University, said they did several things to make sure “elites” decided who would run the country.

The Senate gave smaller and larger states two members, originally chosen by state legislatures, not a popular vote. The House of Representatives was more democratic, because it was based on population, but Southern states had an advantage. Their slaves were counted as three-fifths of a person for determining the number of representatives, even though only property-owning white males could vote.

The framers devised the Electoral College to balance the interests of large and small states by assigning each state one elector for each member of the House and Senate. Electors, which at the beginning of the republic often were chosen by legislatures, would meet after the quadrennial election and cast their votes for a president. They would get together in each state, not be bound by popular sentiment, and make their choice, Clayton said. If there was no majority in the Electoral College, Congress would pick the president.

Nothing in the Constitution says they must vote for the person receiving the most votes in that election. In fact, the Constitution doesn’t specifically call for a public vote for president.

Alexander Hamilton said it wasn’t a perfect system, but it was “an excellent one.” But Clayton said what they really did was base it on a European model, like the College of Cardinals, which selects the pope.

“It’s a medieval system,” he said.

Early Reagan supporter

Mike Padden was a strong supporter of former California Gov. Ronald Reagan through the 1976 Washington precinct caucus and county convention. He was a Reagan delegate to the state convention, held that year in Spokane, and hoped to go to the Republican National Convention in Kansas City. At the time, Reagan and Ford were battling for the nomination, which wouldn’t be decided until the national gathering in August.

But Padden was a recent graduate of Gonzaga Law School, and didn’t have the estimated $3,000 a national delegate would spend attending that event. Someone suggested that he instead run for elector, to cast the vote allotted to Eastern Washington’s 5th Congressional District if the state went Republican.

He agreed, and won the spot on the Washington Electoral College. Ford captured the nomination in Kansas City, and beat Carter by 60,000 votes in Washington. But Carter got about 1.3 million votes more nationwide, winning 23 states and a projected 297 electoral votes to Ford’s 240.

In mid-December, Padden drove across the state to Olympia, where the Washington Electoral College would meet in the state Capitol Building. Still on a budget, he spent the night before at his cousin’s house.

Problems developed quickly

The Electoral College system worked pretty well for eight years, selecting George Washington as president and John Adams as vice president. Problems with the original system – in which all votes were cast for a president, and the person with the secondmost votes became vice president – started in 1796 when Adams, a Federalist, was named president and Thomas Jefferson, a Democratic-Republican, was named vice president.

Four years later, Jefferson and his running mate, Aaron Burr, finished the Electoral College voting with the same number of votes, sending the decision to Congress, which needed 36 votes to pick Jefferson.

The 12th Amendment changed the system so that each elector would cast one vote for president and one for vice president. That didn’t solve all the problems, however. The votes were split among four candidates in 1824 and the election was thrown into the House of Representatives, where the candidate with the most popular votes, Andrew Jackson, lost to John Quincy Adams. Four years later, Jackson won by ushering in an era of populist sentiment that called for popular elections by all white males.

In 1872, Horace Greeley died after the election but before the college met, prompting most of his electors to vote for other candidates. Those who stayed “faithful” to their state results had their votes disallowed because Greeley wasn’t qualified to be president because, well, he was dead. It didn’t really matter, though, because Ulysses Grant had been re-elected in a landslide.

Twenty electoral votes were in dispute in 1876, and while Democrat Samuel Tilden was just one shy of the 185 needed to be president, a deal was struck to give all 20 – and the presidency – to Republican Rutherford Hayes.

In 1969, the House passed a constitutional amendment to abolish the Electoral College and replace it with a system that used the national popular vote with some conditions. It was supported by President Richard Nixon, but died in the Senate from a filibuster.

Over time, states came up with different ways to choose electors. In Washington, the political parties select them at their conventions.

As Ohio goes …

By law, the Electoral College meets at noon in each state on the first Monday after the second Tuesday in December. Mike Padden was planning to cast his electoral vote for Reagan when he got up that morning in 1976, but first he called back to party officials in Ohio. A legal challenge was filed after Carter won the state by just 11,000 votes and the GOP was claiming massive voter fraud. They tried to block the 25 Ohio electoral votes from going to Carter, and if added to Ford’s 240, he’d be just five away from the total he needed to win.

“The Ohio lawsuit was thrown out the day we met,” Padden said recently. Because of the difference in time zones, Ohio electors had already cast their votes for Carter before Washington electors met. There was no chance for Ford to pick up those votes, and no chance he could make up the ground to win.

Once he found that out, he decided to vote for Reagan for president, and Bob Dole, the GOP nominee for vice president.

“I was actively involved in the pro-life movement,” Padden said. Three years earlier, the U.S. Supreme Court had handed down Roe v. Wade. While Reagan opposed abortion, the more moderate Ford supported abortion rights.

“There were a couple of Ford guys (on the state’s Electoral College). They were upset,” he said. “Most were Reagan people, they were people I knew. Some said ‘That’s great.’”

“It wasn’t a huge deal.”

The next day, Reagan’s press secretary, Lynn Nofziger, issued a statement that “Ronald Reagan thanks Mike Padden for his vote.” Padden was pleased that when the Electoral College results were read in Congress, as required by the Constitution, then-Vice President Nelson Rockefeller, a member of GOP moderate wing, had to read “and one vote for Ronald Reagan.”

Four years later, Reagan came to Spokane to campaign, and Padden was introduced to him as “governor, this is the guy that voted for you in 1976.” It was quick, and Reagan might not have understood exactly, Padden said. He smiled and said “We sure gave ’em a good fight.”

Changes in the system

After Padden’s vote, Washington adopted a law that requires electors to sign a pledge to cast their vote for the winner of the popular vote, with the prospect of a $1,000 civil fine if they don’t. Some other states have “faithless elector statutes” to require compliance or impose penalties.

No Washington elector has deviated from the popular vote since 1976, so the Washington statute hasn’t been tested and no elector has ever been prosecuted from deviating from the popular vote. But even before the November election, at least one Democratic elector, who was a Bernie Sanders supporter, said he wouldn’t vote for Hillary Clinton and since Donald Trump’s apparent victory, two other Democratic electors have joined a group calling themselves Hamilton electors in an effort to deny Trump the votes he needs to be president.

But they need at least 37 Republican electors to switch their votes and aren’t expected to get them on Monday. Last Wednesday, a federal judge threw out a challenge to Washington’s “faithless elector” statute, saying they hadn’t yet voted, so they haven’t been fined and can’t prove damages yet. The two electors, Bret Chiafolo and Levi Guerra, have appealed, but the 9th U.S. Circuit Court of Appeals on Friday declined to grant them an emergency injunction pending their appeal, saying they failed to show they were likely to win their lawsuit.

After he cast his vote for Reagan, Padden said the Spokane County GOP chairman denounced him and said he was finished in local politics.

That’s not the way it turned out. Padden was elected to the state House of Representatives in 1980, where he served until 1995, when he was appointed to the County District Court bench and served until 2007. After retiring from the court, he beat another Republican appointed to the Valley’s state Senate seat in 2011, and this year won re-election unopposed.

Only one opponent, in that first legislative race, has mentioned his Electoral College vote, Padden said. Reagan won the White House that year, so since then, he’s been able to stick with his standard line, “I was ahead of my time.”