an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
With the Electoral College set to vote in just a few days, the debate over the role of Presidential Electors has reached a fever pitch. Should this year’s Electors follow longstanding norms and rubberstamp their state’s popular vote winner, or should they buck tradition and dump Trump? Missing from these discussions is an alternative that seems tailor-made for the age of Trump. Perhaps Electors should do what Trump himself would likely do in their shoes: negotiate.
Encouraging Electors to negotiate with a would-be President may be a way to reconcile, at least in part, our competing instincts about the Electoral College’s function. Negotiations are an option because, as the dump Trump contingent correctly observes, the Constitution does not require Electors to ratify state popular vote outcomes. Constitutionally speaking, Electors are free agents.
But do we really want Electors to exercise their constitutional prerogative and disregard the will of their state’s voters? Some have suggested that Hillary Clinton’s national popular vote win gives Electors license to discount the state-by-state results. But this amounts to a request to change the rules after the game has been played. For better or worse, everyone knew going in that the election would turn on winning enough votes in the right places, not on tallying the most votes overall.
Others have argued that Electors should exercise their constitutional prerogative this year because Trump is, in their view, unfit for office. The Framers, they say, designed the Electoral College as a safety valve and left Electors free to vote their conscience precisely to ensure that the presidency does not fall into the hands of a demagogue. At least one Republican Elector has taken this position and announced his intention to vote for someone else.
Even if the Framers envisioned the Electors as guardians against tyranny (a debatable point), we probably cannot and should not rely on Electors to play this role. On one hand, most Electors will be reluctant to defy their state’s voters, either because they genuinely support the winner, or because they fear the backlash that defiance could bring. On the other hand, galvanizing Electors to follow their own personal compasses might well set a precedent we would come to regret. (Imagine the outcry if Hillary Clinton had presumptively won the Electoral College only to be thwarted by a band of rogue Electors who viewed her email travails as disqualifying.) Moreover, even if some Electors are open to alternative candidates, they face the collective action problems that Jack described in his post last night.
Electors, however, can be faithful to their state’s voters without forsaking their constitutional prerogative entirely. The real value of that prerogative is to give Electors leverage—a point that Trump of all people should appreciate. As he put it in The Art of the Deal, leverage means “having something the other guy wants. Or better yet, needs. Or best of all, simply can’t do without.” For aspiring Presidents, electoral votes are indispensible. If Trump, the consummate dealmaker, were an Elector, would he simply hand his vote to his state’s popular vote winner without seeking anything in return? Unlikely.
To be clear, Electors emphatically should not seek to exchange their votes for personal gain. Such conduct would almost certainly expose them to legal liability and would be a grave betrayal of the public’s trust.
Instead, the idea is for Electors to negotiate as agents of their state’s voters, mindful of the electorate’s will. They should expect to support their state’s winning candidate. But they also should consider seeking actions or commitments from that candidate on behalf of the voters they represent. Electors could pursue such deals individually, or, to increase their clout, they could coordinate within or across states. If the candidate refuses their overtures, Electors would then have cause to withhold their votes or back someone else, ideally someone broadly acceptable to the voters who supported the state’s popular vote winner.
The case for Electors as negotiators is especially strong in an election as unconventional as this one. Trump was a norm-shattering candidate. His words and deeds troubled even many of those who ultimately voted for him. He attracted support with grandiose promises, but his penchant for puffery, doublespeak, and finger pointing has left many to wonder about his sincerity and true intentions. Information that has emerged since the election has amplified these uncertainties. Electors are uniquely situated to press Trump to address ongoing concerns about his conduct, to demand greater clarity about his plans, and to hold him to his promises.
What specifically could Electors seek from Trump? They would have to assess the sentiments of their state’s electorate and make their own judgments. But consider three illustrative possibilities. (Bear in mind that the Electors with the real leverage hale from states that Trump won, so they are unlikely to pursue everything that Trump’s most vocal critics might have on their wish lists.)
First, Electors might insist that Trump pledge to support a full investigation into the evidence that Russia sought to swing the election in his favor, to accept the conclusions of that inquiry, and to resign if the investigation reveals that he or his campaign was complicit in Russia’s actions.
Second, perhaps Electors could induce Trump to follow established norms concerning his personal finances. Electors might finally prompt Trump to release his tax returns, as Presidential candidates have uniformly done for decades. Electors could simply tell Trump, “no tax returns, no electoral votes.” Electors also could press Trump to do more to avoid self-dealing and conflicts of interest.
Third, and perhaps more ambitiously, if Trump’s history of flip-flopping and backtracking gives them pause, Electors could ask him to recommit to some of his most salient campaign promises and accept them as the benchmarks against which his performance as President should be judged. Electors could identify specific metrics for assessing Trump’s success or failure (e.g., the economic growth rate, job creation, real wages, deficit/debt levels) and then have Trump go on the record and declare that, should he fall short, he will accept full responsibility.
What about the collective action problems Jack has identified? They are real, but they may be less vexing when Electors are acting as negotiators rather than as conscientious objectors. First, negotiating Electors would presumably understand that the nature of their enterprise calls for them to join together to strengthen their hand. For conscientious objectors, the need for coordination isn’t quite as obvious. They may see their primary objective as simply being true to their personal convictions. Second, the pool of potential negotiators is likely larger than the pool of potential outright defectors. Even Electors who are fairly supportive of Trump ought to embrace the idea of trying to strike a better deal on behalf of their state’s voters. The larger the pool, the greater the need for Trump to play ball, and the less likely he would be to prevail simply by picking off a few weak-kneed Electors. Third, and critically, the way for Trump to “pick off” Electors—i.e., to keep them in his camp—is to negotiate with them, which is exactly what we would want, at least as long as the Electors are advocating on behalf of their state’s voters. Moreover, once Trump starts striking deals with some Electors, that might well embolden additional Electors to seek deals of their own.
Of course, it is almost certainly too late in the day for anything along these lines to happen. But it is worth reflecting on what might have been, especially as we begin to look ahead to next time.
Robert Yablon is Assistant Professor of Law at the University of Wisconsin Law School. You can reach him by e-mail at robert.yablon at wisc.edu