Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.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
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler 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 yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.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
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Next week, in Colorado Dept. of State v. Baca, the Court will decide whether to invalidate state laws binding presidential electors. The “faithless electors” won their case in the Tenth Circuit based on an originalist argument. Since there is no obvious partisan advantage to either side of the case—both the Democratic and Republican parties have filed briefs opposing the faithless electors claim—the Court’s conservatives might relish the opportunity to showcase their “principled” originalism and hold that presidential electors have a constitutional right to vote for whomever they choose.
The faithless electors’ case focuses on the meaning of Article II, section 1, clause 2: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors…” The faithless electors argue in essence that “electors” means persons with full voting discretion so that the “manner” of appointment cannot include instructions on how to vote—for example, binding the electors to vote for the state’s popular vote winner, or, as the National Popular Vote Interstate Compact movement would have it, for the national popular vote winner.
In this post, I’ll first discuss the pragmatic side of the faithless electors case, and then the constitutional history. The best reading of the text, structure, and history of the Presidential Electors’ clauses, I believe, is that the majority of the Framers probably didn’t care whether electors were bound by state law or not, because they assumed that contested elections would usually end up in the House of Representatives either way.
The Pragmatic Side
The consolidated cases out of the Tenth Circuit (Baca) and Washington state (Chiafolo v. Washington) arose because three Democratic electors in each state tried to vote for prominent non-Trump Republicans rather than Hillary Clinton, the popular vote winner of both states. )The Coloradans voted for John Kasich, and the Washingtonians for Colin Powell.) This was apparently a coordinated effort by these electors to stop Donald Trump.Calling themselves “Hamiltonian,” because Hamilton argued in The Federalist No. 68 that electors should use their discretion to prevent demagogues from becoming president, these electors presumably hoped to set an irresistible example that would somehow persuade a sufficient number of Republican electors to vote for non-Trump Republicans as well.
Though well intentioned, the effort seems idiotic, both now and then. No sane person could have expected 264 Trump electors to switch to Kasich at the last minute to swing the election outright; the hope was apparently to throw the election into the House, by shifting at least 37 Trump electors thereby depriving him of a majority. But the House was controlled by Republicans. In the end, not a single Republican elector switched, which surprised no one, since the Republican Party had definitively closed ranks around Trump as soon as it became clear that GOP voters were sticking with him after the “Access Hollywood” video episode.
Intriguingly, lead counsel for the faithless electors is none other than Lawrence Lessig, who presumably hopes that unbound electors will stop Trump in 2020. It’s worth pausing to consider how that might work.
At present, 32 states plus the District of Columbia have laws binding electors in some manner to vote for the state’s electoral vote winner.The remaining states rely on party discipline to align electoral with popular vote.
A Court victory for the faithless electors will not by itself transform presidential elections into the purported “Hamiltonian” system of 538 electors free to vote their consciences. To be sure, such a decision would send a signal by judicially blessing elector discretion. Yet, throughout U.S. history, there have been only 180 or so “non-conforming” electoral votes, in which an elector voted against the state popular vote winner, even though state laws formally binding electors are a relatively recent development and have never been uniform throughout the states. Therefore, the most that could be reasonably expected from a faithless electors’ victory is that some small handful of electors will take the Court’s encouragement and cast non-conforming votes.
Then what? The “best case scenario” from the faithless electors’ point of view is that a Trump electoral majority would be thrown into the House. There, despite the Democrats’ current lead of 30+ seats, Republicans control majorities in 25 state delegations. (The Democrats control 24, with Michigan split.) Absent party cross-over votes, neither party would command a majority, so that no president would be chosen (see Amendment XX), resulting in a potential constitutional crisis, or, or a legitimacy crisis in the form of a Nancy Pelosi presidency with no template for whether or when to hold an interim presidential election. And of course it is always possible that a faithless elector scenario could snatch a victory away from the Democratic candidate. (Think of a handful of Bernie Sanders spoilers in a close election.)
Perhaps Lessig or others are pursuing a monkey-wrenching strategy: if the 2020 election is disastrous enough, it might spur a movement to amend the Constitution to adopt a straight popular vote system for the president. On the other hand, the faithless electors’ claim would preclude the other route to fix presidential elections, the National Popular Vote Interstate Compact.
Constitutional History and Interpretation
Given that the plain evolutionary trend in two centuries of presidential elections has been toward pledged or even bound electors, the argument that electors should vote their free and conscientious choices requires a reversion back to some “original meaning.” The originalist argument for faithless electors has both a linguistic and “structural” component.
The linguistic argument maintains that “elector” means someone free to vote his or her choice, as with “electors” for the House of Representatives (i.e., ordinary citizen-voters). An excellent rebuttal to that argument is found in John Vlahoplus’s essay demonstrating the indeterminacy of that language. Suffice to say here that the two conflicting interpretations are found in The Federalist essays themselves. Compare The Federalist No. 68 (Hamilton) (presidential electors would be those “most likely to possess the information and discernment requisite” to the “complicated” task of choosing the president) with The Federalist No. 39 (Madison) (asserting that the president would be elected “by the States in their political characters”).
As is often the case with originalist arguments in the era of “original public meaning” originalism, Framers’ intentions are smuggled into the presidential electors analysis under the rubric of “structural” arguments. Lessig’s lead brief for the faithless electors asserts that “The electoral college…. was crafted initially because the Framers did not want an executive dependent directly upon Congress nor upon the state governments.” (Consolidated Opening Brief for Presidential Electors, at 18.)
“Crafted” is hardly the right word for the patched-together compromise reached at the eleventh hour of the Philadelphia Convention—a compromise designed to accommodate three divergent views on presidential selection rather than to work well. But as long as we’re asking what “the Framers [did and] did not want,” let’s look at the odd drafting history of the Presidential Selection clauses and at the final approved language.
It’s true that some Framers did not want congressional election of the president, out of a concern for presidential independence, but many Framers preferred congressional election. In fact, wide majorities voted for congressional election multiple times. The Philadelphia Convention flip-flopped repeatedly between section by “the national legislature,” or by electors chosen by the state legislatures. On June 2, 1787, the Convention voted by eight states to two that the president should be elected by the national legislature for a non-renewable seven-year term, rejecting unanimously James Wilson’s motion for direct popular election of the president. A week later, the Convention strongly reaffirmed that view, voting 9-0 to reject a motion to elect the president by the decision of the states’ governors. Returning to the topic on July 17, the Convention, by an 8-2 majority, rejected a motion by Maryland delegate Luther Martin that the president should be selected by electors chosen by the legislature of each state. Two days later the Convention flip-flopped, deciding by a 6-3 margin that the president should be chosen by electors “appointed” by the state legislatures. But the next week, on July 23, the Convention voted 7-3 to reconsider this decision. After two further days of debate, on July 26, the Convention flip-flopped again, reinstating by a 6-3 vote the decision to have the president chosen by the national legislature. That resolution was incorporated into the Committee of Detail Report on August 6.
The Convention turned back to presidential selection on August 24. The delegates again rejected Wilson’s renewed motion for direct popular election, as well as a motion to elect the president “by electors chosen by the people of the several states,” and reaffirmed selection by the national legislature. But the Convention bogged down on the details of how Congress would choose the president: would it be by ballot (i.e., by the legislators voting as individuals) or by state? Would the House and Senate vote separately, or jointly? With these difficulties, the question was turned over to the Committee on Postponed Parts, which reported on September 4 with the provision that was ultimately ratified—except that the Convention replaced the Senate with the House as the body that would choose the president in the event that no candidate had an electoral majority.
The flip-flopping was undoubtedly due in part to the fact that at least some delegates linked the selection method with the president’s term of office and his eligibility for more than one term. For example, the June 2 resolution specified that the president would be chosen by the national legislature for a single seven-year term. As the presidential term of office and re-eligibility were moving targets during the Convention debates, some delegates’ views of the best selection system may have shifted as well. (Since neither the Convention Journal nor any delegates’ notes broke out the individual votes, we can’t answer this question.)
But the numerous votes approving congressional selection of the president make it unlikely that a majority of delegates insisted that the election system bolster presidential independence from Congress. The final version of Article II, section 1, clause 2 represented, not a rejection of congressional involvement in presidential selection, but a compromise between the congressional selection camp and the state electors camp—with a nod even to the popular election fringe-- though leaning ultimately toward the congressionalists.
Article II, section 1, clause 2 provides: “if no person have a majority, then from the five highest on the list” of candidates receiving electoral votes “the said House shall in like manner choose the President.” The five … highest? Today, it is inconceivable that more than two or three candidates would receive any electoral votes. But the Framers apparently anticipated that there could be more than five, and that that scenario would occur with sufficient frequency to provide for it expressly.
This is consistent with the view of many historians, that the Framers predicted that most contested elections would wind up in the House. Except in those cases where a single great man, like Washington, would be elected more or less by acclamation, the Framers likely believed that presidential elections would be non-partisan free-for-alls in which each state would nominate its favorite son. Their concern about favorite sons is evident in their ill-conceived provision giving each elector two votes for president, requiring one to be cast for a candidate from outside the elector’s own state. That provision, by failing to account for disciplined national parties, produced a tie as Jeffersonian electors dutifully cast their two votes for Jefferson and Aaron Burr, and was partially patched up by the Twelfth Amendment. But the Amendment nevertheless carried forward the Framers’ version of the House’s role, a role that the Framers most likely believed would be substantial, and the electors’ role marginal, rather than the other way around. If that is the case, then the Framers would have had little incentive to clarify the relationship between the electors and their respective state legislatures.
The election that most closely approximated the “Framers design” was that of 1824. With no viable opposition party in existence—thus approximating the Framers’ expectation that there would be no political parties--the four Jeffersonian Republican party leaders vied for the mantle of the presidency: Secretary of State John Quincy Adams, Secretary of War John C. Calhoun, Treasury Secretary William Crawford, and House Speaker Henry Clay. A fifth candidate, Tennessee favorite son Andrew Jackson, ran as a Washington outsider and won a popular and electoral vote plurality. But no candidate won a majority, and the election was thrown into the House where a deal was struck between Adams and Clay that swung the election to Adams. The result was a legitimacy crisis—fomented by Jackson supporters who decried the “corrupt bargain” that ended with Clay appointed Secretary of State—that undermined Adams’s presidency. Another unintended consequence of the Framers’ presidential election system working as designed.
The Framers’ strongly anti-democratic leanings—James Wilson’s two motions for direct popular election of the president never won the support of a single state delegation—together with their failure to account for the eminently foreseeable rise of political parties, produced a terrible presidential election system. It was only the evolution of state laws binding electors and of political party discipline that has refashioned the framers presidential election system into something even remotely tolerable in a democracy. The evolved form of presidential elections has kept the vast majority of elections away from the House, where whose presidential voting rules are far greater departures from “one-person, one vote” than the Electoral College. In the Electoral College, Wyoming’s voting strength as a function of population compared to California’s is 3.7-to-1. In the House of Representatives, where each state delegation gets just one vote for president, that disparity becomes 68-to 1.
The purported Hamiltonian system of unbound electors is neither a clear original meaning nor a system that existed in practice: as early as the first genuinely contested election in 1796, electors were already beginning to vote by party rather than by individual discretion. A Supreme Court decision to “restore” that system will either make no difference in presidential elections, or make them worse.
David S. Schwartz is Foley & Lardner-Bascom Professor of Law at the University of Wisconsin Law School. You can reach him by e-mail at dsschwartz at wisc.edu