On ‘Faithless’ (But Democratically Faithful) Electors
Let’s stand up and fight like citizens in a republic.By Lawrence Lessig, November 11, 2016
Joi Ito writes: “So what about this?”
I apologize for the technical, law-geek reply but: Hell yes!
The Framers created the electoral college as a safety valve. They were not certain how the states would establish the process for selecting a president. Most assumed they’d have popular elections. But to avoid the chance that some insane passion would sweep the nation, and drive it to elect a nut, or a demagogue, they embedded an electoral college as a kind of circuit breaker. If the people go crazy, the college would be there to check it.
As (probably) Hamilton wrote in Federalist 68, “the sense of the people should operate in the choice of the [president]” — but that sense would operate through an intermediate body, actually several intermediate bodies that would meet separately in the states, cast their ballots, and then transmit the results to Congress. By requiring they all meet on the same day but in many different places, the Framers thought they could avoid coordination and “corruption.” But by vesting the ultimate decision in these bodies of electors, they intended, Hamilton tells us, that:
...the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. (Federalist 68)Many have rightly criticized the college as anti-democratic. I am one of those critics. But so long as it is part of our Constitution, we should take it seriously. And all it was seriously meant to do was to give a set of elected representatives (the “electors”) a chance to second guess the outcome of a popular election. If the people went nuts, the electors could veto it.
But if the people don’t go nuts, there is no reason — or justification — for the electors to second guess them. The Framers did not limit the reasons the electors might invoke for voting however they vote. They are free to vote however they want, for whatever reason they want — recognizing, no doubt, that they will need to justify what they do to a public that might ask why. They were empowered to veto the democratic will — if the democratic will needs to be vetoed. But in a republic, they should only exercise that power when circumstances demand it.
In this election, the people have not gone crazy. The majority have cast their vote for Hillary Clinton. Like her or not, she is not a demagogue. She is not a tyrant. Indeed, she is the most qualified candidate for president in at least a generation. No elector could ever have had a good and sufficient reason to vote against her.
But because of the screwy way that electors are allocated, despite her winning the popular vote, she will lose the vote in the electoral college — if the electors, unthinkingly, simply followed the modern winner-take-all tradition for casting their votes (a rule not itself in the Constitution).
There is no reason — either morally or politically or constitutionally — that the electors need to create this crisis now. There is no reason they need to vote against the popular will. Each elector is free to vote his or her own conscience. In a republic — aka, a “representative democracy” — it would thus be completely justified for an elector to vote to assure that the will of the majority prevails in a presidential election.
tl;dr: Electors were meant to be circuit breakers, when democracy went nuts. Our democracy has not gone nuts. A majority voted for a perfectly sane and eminently qualified candidate for president. So too should the electors.I get that many will respond — “hey, but that’s not our system.” Those “many” are just wrong. That is our system — electors can vote however they wish; and they should exercise their power consistent with democratic ideals. It is at least the presumption of a representative democracy that the person who gets the most votes should win. That presumption should persuade electors to vote to assure a majoritarian outcome, unless there’s a good reason not to. Simply following a tradition that has defeated the democratic will at least 4 times in the past is not “a good reason.”
Nor is it a long term strategy for preserving our Constitution. And this is the point that too many are just missing. Electors in the college can interpret their duty to be consistent with the national democratic will. Or they can force a very uncomfortable question.
In theory, we could amend the Constitution to eliminate this anti-democratic flaw. But in theory, only. The practical reality is that such an amendment is just impossible. As Michael Klarman writes in his most recent book, The Framers’ Coup (2016):
[A]n amendment to alter [the electoral college] would be virtually impossible to enact — both because the even more drastically malapportioned US Senate would very likely never pass it and because the smaller states, which benefit from the malapportionment, would never ratify it.Yes, our Constitution is great. Long live our “great Constitution.” But if the view of America’s political elite is that it must yet again be applied to defeat the democratic will — and, to add insult to injury, that this anti-democratic feature of our Constitution is effectively unamendable — then it’s time we remember what our Framers did, the last time America was confronted with an effectively unamendable constitution that defeated the democratic will: They simply walked away from it.
In 1786, when it was clear that the flawed and anti-democratic Articles of Confederation could not be amended, the Framers started a process to draft a new Constitution. When they completed that draft, they told Congress to send it to state conventions to be ratified. That draft stated that it would come into force if nine state conventions so decided. Nine months later, New Hampshire was the ninth state to ratify it, and the Constitution came alive.
Every step of that process was, under the Articles of Confederation, illegal. And yet, the Constitution that resulted became our Constitution. My colleague Mike Klarman calls that a “coup.” I call it precisely what it means to live in a republic, where “the people are sovereign.” We had declared our independence from Britain on the Jeffersonian theory that the people had an “unalienable right to alter or abolish” their constitution. In adopting our Constitution, we exercised that “unalienable right.”
If we are yet again trapped by an effectively unamendable and anti-democratic constitution, it is time to consider what we can do to move beyond it. In 2016, because of the way the electoral college is understood, the person with the most votes will likely not be president. Because of the way Congress permits the states to gerrymander congressional districts, the party with the most votes will not be the majority in the House. And because of the way the Framers crafted the Senate, the party with the most votes will not be the majority in that body either.
Only one of these three anti-democratic outcomes is actually compelled by our Constitution: the Senate. I, for one, would be happy to accept that one compromise.
But a constitution that denies the majority its will in every branch of government just does not create a constitutional democracy.
We can, bovinely, just accept that fact. I get it, we’re all busy.
Or we can, like citizens in a republic, stand up and fight.
I have no idea how we’d even press that question, given the monster that is the United States government. And I’ve long been a fan of the one clear path to amendment that the Framers seemed to leave us — an Article V convention.
But I’d much rather avoid this question by having electors behave in a way that’s consistent with a representative democracy. And then after that, by getting Congress to reform the insane system of gerrymandering and campaign finance that defeats it as a representative body too. (Citizen Equality Act anyone?)
Meanwhile, bravo to those fighting for democratic principles. It used to be not such a controversial idea.
 Like any question in constitutional law, there are those who disagree with this conclusion, and I concede, their position is not crazy. It is just not correct. Tons of sources tk.