Why Electors Should Not Make Hillary Clinton (or Anyone Else Besides Donald Trump) President

Posted in: Election Law

On Thanksgiving Harvard Law Professor Larry Lessig published a Washington Post op-ed arguing that conscientious presidential electors need not—and should not—elect Donald Trump as president when they cast their ballots next Monday, December 19, in spite of the results from November 8. Instead, he urges electors to respect the “sense of the people,” more of whom expressed a preference for Hillary Clinton than for Donald Trump. In doing this, Lessig argues, the electors would honor a very important democratic principle—one-person, one-vote.

A number of electors have themselves indicated that they do not plan to vote for the candidate who obtained the most popular votes in their respective states. I wrote on this website an earlier column about the “faithless” Democratic elector from Washington State who said he would not vote for Secretary Clinton in spite of the fact that she won the popular vote contest in Washington by a 16-percentage point (54-38) margin. And more recently, a Republican elector from Texas announced, and explained in an essay in The New York Times, that he will not vote for Mr. Trump when the Texas electors meet next week, and instead will work to elect John Kasich or another Republican.

I have argued for many years that there are better ways to pick a president than the electoral college, and I have written extensively (e.g., here) about one viable reform in the direction of a national popular election—the National Popular Vote Compact plan. As I have elaborated, I see at least three big drawbacks with the electoral college: (1) votes around the country for a single office are treated unequally; (2) candidates pay attention only to a handful of decent-size or large “swing” states because margins of victory in each state are irrelevant; and (3) “faithless” electors can betray the will of the people who select them by violating the promises electors made to get selected. But in spite of these flaws—and in spite of the fact that I disagreed with much of what Candidate Trump stood for—I think Professor Lessig’s pitch is unpersuasive and would take us down the wrong path. Indeed, although I always hesitate before I disagree with Professor Lessig because he is a powerful mind, the key feature of the current system that Professor Lessig leans on—the “independence” of electors—is (if it exists at all) something I view as a vice, not a virtue.

Professor Lessig rightly points out that, under the electoral college, there is voter inequality. He writes: “[T]he vote of a citizen in Wyoming is four times as powerful as the vote of a citizen in Michigan. The vote of a citizen in Vermont is three times as powerful as a vote in Missouri. This denies Americans the fundamental value of a representative democracy—equal citizenship.” For this reason, Professor Lessig argues, the electors should feel perfectly justified in selecting the candidate who was the choice of the American people—Hillary Clinton—provided there was not “massive fraud” in the process by which people registered their preference, and provided the people did not, in favoring Ms. Clinton, “go crazy” or pick a “Manchurian candidate.”

Of course the big problem with this argument—and Donald Trump has himself pointed it out—is that we don’t really know which candidate is the true choice of the greatest number of American voters, because the preferences the voters register are at least in part a function of the campaigns that the candidates wage, and the campaigns candidates wage are, in turn, based on the rules in existence before the election. It is at least possible that Mr. Trump could have run up bigger margins of victory in some Red states, and salvaged smaller margins of defeat in some Blue ones—sufficient to win the national popular vote—had he been told that margins of victory would matter. Professor Lessig is correct that a fundamental value of representative democracy is equal citizenship. But another fundamental value of representative democracy is that election rules should be put in place before, not after, elections. (This is the flip-side of the requirement that losers accept the results of fairly administered elections, something that Secretary Clinton but not Candidate Trump fully endorsed.)

But what about the fact that the electors exist and were given “independence” by the fundamental constitutional rules in the first place? It is true (as Professor Lessig observes) that the framers did not opt for a direct national election at the founding. But at that time there were no communication, transportation, or political-party institutions that would have made a direct election even remotely possible. And when those institutions did come about such that we could have implemented a national popular vote, slavery and the Southern states’ desire to protect their “peculiar institution” were prominent forces against a national election. But slavery is gone, an African American no longer counts as “three-fifths” of a person for federal representation purposes, and the people themselves do weigh in as voters in all 50 states. So whatever role the electors were called upon to play before states began holding election contests is somewhat beside the point.

Relatedly, I am not sure the Constitution in fact protects the independence of electors in the face of state law trying to regulate them. Professor Lessig is correct that the Constitution “says nothing about ‘winner take all’ [and] says nothing to suggest electors’ freedom should be constrained in any way.” But it also says nothing foreclosing “winner take all,” or preventing restraints on elector freedom. What it does say is that states should run the show; Article II gives to “each state” the power to “select” electors. And states are the ones who have chosen “winner take all,” and who have adopted limits on elector free rein. While there is not much case law upholding such limitations, neither is there clear, controlling judicial authority calling such limitations into question.

I can tell you one thing that is clear; most people don’t know when they vote for president in November that they are really voting for a set of electors from that state. And the sophisticated folks who do understand they are voting for electors rather than candidates expect that the electors who are selected will carry out the wishes of the voters in the state. Hardly any voter thinks he is selecting a group of electors who can and should do whatever they please in their best judgment. So if we want to respect the will of the voters, we should remember what most of them expect when they vote.

Some electoral college critics (and Professor Lessig says he is not sure he prefers a national popular election to the electoral college) might think that if electors followed Professor Lessig’s advice and chose Secretary Clinton or any other non-Trump person for president, one result would be the elimination of the electoral college device. I am not sure that is true. I do, however, expect that pursuit of this route would lead to a real constitutional crisis. And even if adoption of Professor Lessig’s advice would trigger a series of events culminating in the demise of the electoral college, I think ending an anti-democratic device by ignoring the election rules and voter expectations in place before the election was held would not be the right way to get there.

As much as I think a national popular vote would be a better way to pick presidents than the electoral college, I think it would be worse still to let a group of unknown (many if not most states do not even list the names of the electors on the November ballot), unaccountable (electors don’t have to stand for reelection or worry about losing their public salaries), and in many instances unproven (many electors are relatively new to national politics and may not be particularly accomplished) folks act based on their own sense of what America really wants or needs.