This whole electoral college thing is getting weird.
A little while ago, I called on the electors to do their duty: when they vote for President on December 19th, they must vote for a person they consider qualified and fitting for the office — even if that means voting for someone other than the two major-party candidates. (I floated the name of Mike Pence. Though hardly my first choice, Pence is nearly unique among nationally-prominent American politicians today in having a positive net approval rating, but any well-qualified candidate who appeals to Republican electors would do.) I said that the right of electors to vote against their pledges to block demagogues from the Oval Office was truly “more than a right: it is a grave and difficult duty.”
At about the same time as I made my case, a bunch of people on the Left had the superficially similar but actually quite crazy idea of demanding that the electors vote for the winner of the national popular vote (that is, Hillary Clinton) instead of the popular vote in their respective states (where Donald Trump leads). This is a bad strategy for three reasons:
(1) Even the most anti-Trump Republican electors would sooner saw off their own legs while shouting, “Trump 2020!” than put Hillary Clinton in the White House. Simply as a matter of political tactics, asking them to not just oppose Trump but support Hillary is an awful strategy. If calling on the electors to vote their conscience is like asking them to stage a daring escape from a POW camp (a big ask in its own right!), calling on them to vote for Hillary is like asking them to sabotage the escape and become a capo. It’s not going to happen, and suggesting it makes it less likely the electors will do anything out of the ordinary this year. But this is just a political concern, and thus the least serious problem with the Hillary Elector movement.
(2) The core argument for conscientious electors is simple: the electors should vote for a candidate who is qualified to be president, and Donald Trump is not qualified to be president, because he is a lying, fraudulent, amoral, deeply bigoted, probably criminal, corrupt demagogue. But Mrs. Clinton is also a lying, fraudulent, deeply bigoted, amoral, probably criminal, corrupt demagogue. She is a tad more polished about the lying, and she’s bigoted against different groups of people (“deplorables” rather than “Mexicans”), but she is nevertheless unqualified for office. If you disagree with me, fine, but remember that you have to convince 37 of 306 Republican electors to vote against Trump, and they broadly agree with what I just said. Arguing for Clinton over Trump because she’s qualified to be President is like arguing that Rebecca Black should sing the national anthem at Inauguration Day because she’s a better singer than Justin Bieber: the point is debatable, but the only correct answer is to forget them both and hire Adele.
(3) Most importantly, people asking the electors to vote for Clinton are, almost universally, sabotaging their own case. The typical argument is that the electors should support Clinton over Trump because Clinton won the popular vote. But the whole point of the electoral college is to circumvent the will of the (small-d) democratic mob by ignoring the popular vote. The only reason we are having this conversation at all is because the Founding Fathers were so scared of popular-vote winners at the national level that they built an elaborate and unique system that was designed, originally, to discourage popular votes from happening at all, and to render those votes only somewhat relevant if they did.
It has been interesting watching the Left’s best minds try to process this bizarre, self-contradictory position, which is grounded simultaneously in mob-rule democracy and in an originalist understanding of the (anti-majoritarian) Constitution that is normally quite foreign to the Left. Lawrence Lessig announced his support a Washington Post op-ed ten days ago. He quickly received rebuttals from Garrett Epps, Noah Feldman, Robert Hardaway, and Stephen Mazie, Clinton supporters and professors all. (I would be remiss not to mention Lessig’s several further replies to these rebuttals.)
These rebuttals all take different tacks. Feldman and Mazie that electors should vote as expected because voting their consciences would threaten the democratic legitimacy of our elections. (To which I reply, “Insofar as our democracy is threatened by our republic, let democracy give way.”) Hardaway robustly defends the electoral college on anti-sectionalist grounds. Epps insists that the electoral college was designed to discourage popular presidential elections from happening in the first place. (True: Hamilton says as much in Federalist No. 68, paragraph 4. And, as I’ve argued elsewhere, that’s a good thing!) Between them, the four rebuttals expose the contradiction at the heart of Lessig’s position — you can’t simultaneously defend the electoral college as an anti-populist safety valve and demand the electors support Clinton because of her populist victory — and I agree with a great deal of what they have to say.
But all four rebuttals share a fatal flaw: all four contend that the electoral college was never intended to serve as a check against the popular will of the people. All four claim that the electoral college is, as Feldman puts it, a “mere formality,” and cast the electors themselves as “faceless hacks whose ideas and judgment are neither wanted nor permitted,” according to Epps. Three of the authors refuse to acknowledge that the electors have a constitutional right to vote their consciences at all. (Epps allows that they do, but concludes, “Let’s not pretend Hamilton and Madison wanted them to.”)
Each author cites some very thin evidence to support their belief: Epps points out that the electors never meet as a college, but rather each state’s electors meet in their own states, so they cannot possibly be supposed to deliberate among themselves. Mazie just cites Epps. Hardaway cites the conclusions of a 1958 political science book that favored popular vote reform and quoted a number of Founding Fathers to support this contrarian view. Feldman relies on a flagrant misreading of Federalist No. 68.
My fellow blogger Tim Huegerich picks these thin arguments to pieces over at Bullshitist:
It is certainly possible to find evidence that, considered in isolation, suggests electors were not intended to be free agents. For example, James Madison himself apparently would have preferred a direct popular election… But there remains ironclad evidence that, in the system ultimately written down in the Constitution, electors were expected to exercise independent judgment.
In particular, I am having trouble imagining how proponents of the revisionist view would answer the following questions, though I remain sincerely open to being enlightened:
- Why does the text of Article II stipulate that “no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector” if electors were envisioned as mere functionaries obligated to vote for the candidates chosen by others? That is, why would it matter who they were if they were not permitted independent judgment?
- “During the debates on September 4, 1787, Charles Pinckney of South Carolina objected to the electoral college because ‘the Electors will be strangers to the several candidates and of course unable to decide on their comparative merits.’ Abraham Baldwin of Georgia replied that ‘increasing intercourse among the people of the States, would render important characters less & less unknown.’” Why were the Framers concerned with the knowledge of the electors, specifically, if they did not intend for them to use their own judgment?
- If Federalist #68, written some months after the convention’s completion, blatantly misstates the intent of convention participants (as Epps claims), why did none of the other Framers ever say so? And why did the anonymous author of Antifederalist #72 play along?
- If electors were not permitted any agency in 1788, then who was it, precisely, that told Georgia’s electors to split their five votes for Vice President among four different candidates? In six out of the ten states participating in that first electoral college, electors split their second votes in a similar way. It was not until 1836 that electors first voted uniformly by state. Why?
To my knowledge, none of the authors have answered any of Mr. Huegerich’s questions yet. Mazie has fallen back on his dangerously populist, ahistoric position that the voters are simply better at picking presidents than 538 electors. (John Adams, who once wrote, “There was never a democracy yet that did not commit suicide,” is spinning in his grave fast enough to power Atlantic City.) Epps has blocked Huegerich on Twitter. I’ve seen no action from Feldman, whose serious error Huegerich singles out for special criticism in the full post (which is worth reading).
I think Huegerich has done a good job making his case in the small space permitted to blog posts. However, he passes over Epps’s argument that the electors were not intended to deliberate because they were never intended to meet in one place. Since this is the basis of Epps’s whole case against conscientious electors, it deserves attention, and, conveniently, Hamilton himself explained it for us in Federalist No. 68: the electoral college meets in different states in order to make it more difficult for special interests to corrupt them. That’s it. A powerful cabal or foreign power might be able to subvert the electors if they all met in one place, but it is exponentially more difficult to leverage influence over dozens of small, geographically distant bodies that vote at the same time on the same day:
Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty.
Epps dismisses this entire passage as a mere “sales document,” but offers no evidence for his competing interpretation of the constitutional provision in question.
Whether or not the electoral college’s dispersion is effective at preventing corruption in modern America, which now enjoys instant communication across far distances, is open to question. But Hamilton nevertheless plainly considered the dispersion of the electors an anti-corruption defense, and this suffices to explain what Epps considered inexplicable. The argument Epps made in his Atlantic piece instantly crumbles.
Frankly, it pleases me to see so many scholars on the Left earnestly debating the original intent of one of the most innovative parts of our Constitution. And, again, I agree with much of what they have to say: Lessig is right that the electors were originally intended to vote freely; his critics are right that Lessig’s further argument that the electors should vote for Clinton misconstrues the Founders’ original intent and misunderstands the electoral college’s anti-populist function. I am especially pleased by Epps’s stated openness to my solution: asking the Republican electors to support a Republican alternative to Trump.
On the other hand, it is disheartening to see originalism used so carelessly. I understand the authors have space constraints, but there’s simply no excuse for Feldman’s misconstrual of Federalist No. 68, Epps’s total failure to acknowledge the generally-accepted explanation for why the electors meet in different places is bizarre, and I think it is very telling that Tim Huegerich’s obvious questions remain unanswered by any of Lessig’s rebutters. Clearly, the tools of originalism remain unfamiliar and unwieldy to many of the finest minds the legal Left has to offer, and these originalist-looking superficialities are the closest approximation on offer. That’s a tragedy, not just for the results of this election, but for American law as a whole.
For a good palate-cleanser, go read the always-terrific Michael Stokes Paulsen in last week’s The Public Discourse. Along with his usual close reading of the relevant constitutional text, he is the first person I’ve seen to succinctly explain why Ray v. Blair is no obstacle to conscientious electors. For deeper reading on the history and purpose of the electoral college, with strong support from primary sources, you should read Robert Delahunty’s recently-published article in Cardozo Law Review De Novo, which I’ve mentioned before (and which I will keep mentioning because it’s terrific).