THE ELECTORAL COLLEGE

THE ELECTORAL COLLEGE

In 1996, a friend of mine was on her way to Albany to cast her vote as a member of the Electoral College in the State of New York.  

She was travelling with the then Chairman of the Democratic Party of the county where she worked. She was also driving and going a little too fast. When the inevitable State Police vehicle pulled her over, the Chairman told her to let him do the talking.

The policeman approached and asked for her license and registration. She gave it to him.  When he asked if she knew why she had been pulled over, the Chairman stepped in, explaining that she was on her way to the Electoral College and a little late.

The cop said nothing and went back to the squad car to write the ticket.

When he returned, the Chairman tried one more time.  "But officer," he said, "there really should be an exception here.  She's on her way to the Electoral College and cannot be late."

The trooper handed her the ticket and said "Buddy, I don't care what school she is going to.  She was speeding."

Then he walked away.

Prior to 2000, not many people knew what the Electoral College was and even fewer could explain how it worked.  Then George W. Bush received 500,000 fewer votes and, for the first time in more than 112 years, the popular vote loser became president because he won enough states to give him an Electoral College majority.

Now, Hillary Clinton has beaten Donald Trump by more than 2 million votes but Trump will presumably be the next president by virtue of having won enough states to garner more than 270 electoral college votes. Unlike in 2000, however, there has emerged at least a modest movement to encourage the electors to vote their consciences and deprive Trump of the Presidency.  

Harvard Law Professor Lawrence Lessig wrote a Thanksgiving day op-ed in the Washington Post arguing that the Electoral College "is meant to be a circuit breaker -- just in case the people go crazy."  In his view, they didn't. Clinton received more votes, a lot more votes, and the electors should confirm that by making her President.  At the same time, a lawsuit is about to be started by a Colorado elector who wants the courts to declare unconstitutional laws in twenty-nine (29) states binding electors to cast their Electoral College vote for the candidate who won in that state.  So now, unlike in 2000, there is at least some effort afoot to, as it were, free the electors.

Would this be legal?

The answer is almost certainly . . . 

Unclear.

The Electoral College was established in the provision of the Constitution -- Article II, section 1-- that sets forth how the President and Vice President were to be "elected." It provides that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress"; that the "Electors" were to "meet in their respective States and vote by Ballot for two Persons"; that the signed and certified list of those for whom the electors voted was to be transmitted under "seal" "to the Seat of the Government of the United States, directed to the President of the Senate";  that the Senate President -- "in the presence of the Senate and the House of Representatives" -- was to open the certified lists and count the votes; and that the person having the majority of votes was to be designated the President and the runner-up the Vice-President. 

In 1804, following the embarrassing election of 1800 in which both Thomas Jefferson and Aaron Burr were named by an equal number of electors despite the fact that they had run as a ticket with Jefferson in the top spot and Burr his vice-presidential second,  Article II was amended to require the electors to actually cast two ballots, one naming the individual for whom they voted for President and the other the individual for whom they voted for Vice-President.

As with many other provisions of the Constitution, the first to comment at length on the Electoral College was Alexander Hamilton in Federalist No. 68.   Though Hamilton assumed that the electors who formed the Electoral College would be "chosen by the people," he no doubt thought popular input could take the form of either a legislative appointment of electors, the legislatures themselves having been popularly elected, or a direct vote of the electors by the people. In any case, however, that was where popular input was to end insofar as electing the President and Vice-President was concerned.  

As to the actual election of President and Vice President, that -- Hamilton thought -- was to be "made by men most capable of analyzing the qualities adapted to the station and acting under circumstance favorable to deliberations," and by a body which would exercise "a judicious combination of all the reasons and inducements which were proper to govern their choice."  In his mind, "[a] small number of people, selected by their fellow-citizens from the general mass" would "most likely . . . possess the information and discernment requisite to so complicated an investigation." 

Hamilton clearly believed the choice made by electors would be deliberative and considered.  He praised the Electoral College as an instrument that would "afford as little opportunity as possible to tumult and disorder," a possibility he deemed "evil" in selecting a President.   He also thought that dividing the choice by selecting groups of electors who then convened and deliberated in each of their respective (but separate) states made it less likely that the election of a President would "convulse the community" with the type of "violent movements" that a focus on one candidate might create. His theory was that meetings in several states would limit the possibility that a single populist demagogue could control the ultimate outcome.  

He believed that the college, by virtue of being a newly elected and temporary body formed solely for purposes of  a single Presidential election,  helped guard against "intrigue and corruption," especially by "foreign powers" who might otherwise find it easy to "gain an improper ascendant in our councils."  To that same end, he praised the fact that Senators, members of the House of Representatives, and all other "officers" of the United States were excluded from the Electoral College; their absence made it less likely that they could control the President via their electoral votes.  He also thought the college would generate independence in a President, essentially by making it unlikely that, once elected, the President could identify (and lobby or help) those who would be responsible for his re-election.  

For Hamilton, all these advantages flowed from the Electoral College members' "transient existence and . . . detached situation." They would be free  from  "sinister bias, " a phrase he took to include both corruption and the failure to do one's "duty,"  and would elect the President and Vice President based on "reasons and inducement . . . proper to [the] choice."  He thought this would eliminate from the office of the Presidency those who only possessed "[t]alents for low intrigue, and the little arts of popularity".  Instead, the mechanism chosen would create the "constant probability of seeing the station filled by characters preeminent for ability and virtue."

Thus spaketh Hamilton.

His view of how the Electoral College would proceed  had a very short shelf life. 

It worked as he predicted in the initial election of Washington in 1788.   Thereafter, however,  the notion of independent deliberation by a council of wise electors more or less ended and electors simply voted for candidates to whom they had previously committed their votes. Commitment, however, was not required by the Constitution, and today commitment is only required by statute in twenty-nine (29) states.  All the others, in theory at least, allow electors to vote as they please. 

Are those twenty-nine (29) commitment statutes constitutional?

For Hamilton, the answer would be "No."   It is clear that he thought the right of state legislatures to determine the "manner" in which each state appointed its electors merely entitled those legislatures to establish  the mechanism through which one became an elector. States could decide to have the legislature itself appoint the electors; they could have those electors chosen by popular vote and they could decide the districts in which that vote could be taken. What they could not do is instruct the electors how to vote.  That, for Hamilton, Article II forbade.

Whether the Supreme Court agrees with Hamilton is another story.  

There has never been a case testing whether any of the various statutes which order electors to vote a certain way are in fact constitutional.  The closest we came to resolving that issue was in Ray v. Blair, a 1952 case in which the Supreme Court held constitutional an Alabama statute that required those running to be nominated as  electors on the Democratic Party line to sign an oath committing, if elected, to vote in the Electoral College for the national party's nominee.  

Over dissents by Justices Douglas and Jackson, the Court said this was permissible.  On the question of whether the Constitution "demands absolute freedom for the elector to vote his own choice," the Court noted that, though the Constitution "says the electors shall vote by ballot," it doesn't "prohibit an elector's announcing his choice beforehand."  The Court also noted that even if such pledges were "legally unenforceable because violative of the assumed constitutional freedom of the elector under  . . .  Art[icle] II," that would not make such a  pledge by a candidate in a party primary unconstitutional.  As the Court put it, "Surely one may voluntarily assume obligations to vote for a certain candidate."

So, if Hamilton is your guide, the electors cannot be committed by statute to vote for any particular candidate for President and instead must be free to choose.  If, however, the Supreme Court is your guide, the rule is uncertain.  So far as we know now, an elector can voluntarily commit to voting a certain way beforehand.  

Whether he or she can be ordered by statute to do so has not been decided.

Stay tuned.  

Professor Lessig, that Colorado elector ready to file suit, and millions of disaffected Hillary voters are hoping enough members of the Electoral College will disregard any commitment statutes and refuse to give Trump the Presidency.  For them, Trump is a bridge too far, an amoral, narcissistic demagogue to whom the country's future, let alone its nuclear codes, cannot be entrusted.  With them, it's not about ideology or party or policy; it's about the  inherent danger of appointing as President a pathological liar who has utter contempt for the rule of law. 

On this view, Hamilton's Electoral College is all that stands between the country and utter disaster. And Federalist No. 68 is a road map on how that body should work to avoid such a disaster.  In fact, for them, Hamilton was prescient. During the election, Trump showed little other than "talent for low intrigue"  as a "foreign power" tried to manipulate the electorate in favor of a demagogue.

If they are right, and can convince enough electors to refuse Trump, the notion of "all hell breaking loose" will acquire new meaning. Republicans will sue and the case will get to the Supreme Court in five seconds.  It will also get to a Supreme Court with only eight justices, so the way in which any case comes up will matter.  In fact, whether a Circuit Court of Appeals enforces commitment statutes in its circuit or holds such statutes unconstitutional and frees the electors to vote their conscience, if the Supreme Court later deadlocks on whether that appellate decision was correct, the Circuit Court decision will stand.

In that case,  the next President will have been chosen not just by unelected judges ,  but by unelected judges neither appointed to nor working in the Supreme Court , whose jurisdiction as  Circuit Court judges is limited to only a small part of the nation.

None of this has even happened before.

The way to bet is that it won't happen now.

That, however, was also the way to bet on November 8.