Jurisprudence

The Coming Reckoning Over the Electoral College

A ploy to bring the issue to the Supreme Court could backfire.

A employee at the Utah County Elections Office puts mail-in ballots into a container.
A employee at the Utah County Elections Office puts mail-in ballots into a container on Nov. 6 in Provo, Utah.
George Frey/Getty Images

Since the 2016 election, some Democrats have raged against the Electoral College as an anti-democratic institution that does not reflect the will of the people. Some Republicans have defended the institution as protecting the power of small states and preserving the federal system. But whether you like the Electoral College in theory or not, it turns out that the actual rules used to implement its use are creaky and dangerous. Indeed, thanks to new conflicting rulings, the institution could generate chaos and confusion in 2020 or in a future presidential election.

In August, the United States Court of Appeals for the 10th Circuit held that the state of Colorado violated the Constitution in 2016 when it removed Micheal Baca, a presidential elector who acted “faithlessly” and voted for John Kasich over Hillary Clinton, who was chosen by the state’s voters. It followed a contrary ruling from the Washington state Supreme Court, which held that the state could fine electors $1,000 for being faithless. Now, Harvard Law professor Larry Lessig is planning to bring the Washington case to the United States Supreme Court—and in doing so, hopes to blow up the current Electoral College system.

It’s a well-intentioned, audacious gambit. And it could backfire spectacularly.

People who closely follow American politics are aware that the United States decides presidential elections not by looking at which candidate gets the greatest number of votes from voters across the country, but instead by Congress determining which candidate captures enough “Electoral College” votes from enough states to reach a majority of 270 (out of 538) electors. But even most politically aware people do not know the arcane details about how the Electoral College works in practice—or how, under the right circumstances, disputes over those rules can thwart American democracy.

After each state votes for president, there is a meeting of real, live people who have been chosen as “electors.” In most states, the law simply instructs these electors to vote for the candidate who received the largest number of votes in the state. (Maine and Nebraska use a more complicated system involving winners in congressional districts.) These electors cast their votes, which the state’s governor then transmits to Congress for counting.

Right after the 2016 election, Lessig publicly urged electors to vote their consciences and to choose Clinton, the popular vote winner, even if they were supposed to vote for Trump given their states’ election results. I and many others expressed skepticism that electors could or should do this, especially given that just about everyone except election geeks expected that the casting of votes by electors was a formality, with no chance for electors to exercise independent judgment. It is the kind of legal question one would not want resolved in the midst of a controversial election.

To Lessig’s credit, he followed up after the 2016 election through his group Equal Citizens to litigate the issue before 2020. He told me, “Our primary objective [in the Colorado and Washington state lawsuits] is to resolve this critical question outside of an election context.”

It is smart to seek resolution now. Imagine, for example, that the 2020 election breaks 270–268 for Trump, a scenario I concocted using the Electoral Vote Map:

A predictive map showing a scenario where Republicans win 270 electoral votes whil Democrats win 268.
Richard L. Hasen/Electoral Vote Map

The pressure to get a couple of electors to flip to the Democrats would probably be even greater than last time, with a small margin and hardened polarization over the past four years.

One key determinant of whether the Supreme Court gets involved is whether there is a split of authority on the question before the lower courts, and, now thanks to Lessig’s litigation, the Washington court and the 10th Circuit have created such a split. (The split may not last long; there are a number of technical procedural questions with the 10th Circuit case, which led one of the judges on the three-judge panel to refuse to reach the merits. The case could be taken over by the entire 10th Circuit and tossed on jurisdictional grounds.)

But Lessig has a bigger target. He wants to use the case as a way of moving toward a constitutional amendment to change the system for choosing the president to one based on the national popular vote, or to bypass the amendment process by getting enough states in the country representing a majority of Electoral College votes to pledge their states’ votes to the winner of the national popular vote. Lessig supports this National Popular Vote “compact,” and he hopes the uncertainty created by the case would create the necessary groundswell of public support for either an amendment or the compact.

As Lessig explained to me, the Supreme Court “should have the opportunity to reflect on the question without it determining an election one way or the other. If the court follows the Washington Supreme Court, then this uncertainty within our election process has been removed. If the Court follows the 10th Circuit, then the public has a chance to determine whether it wants to accept that result. If it doesn’t, then either the National Popular Vote compact or an amendment could remedy it.”

How would giving electors the power to vote their consciences lead to the adoption of voting along the lines of the National Popular vote compact? According to Lessig, “NPV would most likely create a significant buffer in favor of the winner, so that any changes caused by independent electors would not be likely to affect the result.” In other words, with enough states in the compact voting for the national popular vote winner, and other states not in the compact going the same way, there would be a large-enough margin in the Electoral College that a handful of faithless electors would not threaten to change the result.

Perhaps.

Here’s why I believe Lessig is playing with fire. There is a reasonable chance that the Supreme Court, if it reached this issue, could decide that, under the original understanding of the Constitution, electors are in fact free to vote their consciences. This would put tremendous pressure on the parties to choose electors who will be faithful and not be swayed, but the kind of lobbying and pressure that would come to bear on each of them would be tremendous in a close election. We would have weeks of national anxiety after the election awaiting a resolution.

Despite this high risk that the presidential election results could be thrown into chaos by a handful of rogue electors, it is not clear that the country could come together at this time of polarization to amend the Constitution or adopt the NPV compact. So far, only states with Democratic majorities have adopted it. Fairly or not, Electoral College reform has become yet another partisan issue.

And the compact itself, if adopted, is no guarantee of stability. The compact says that states must give six months’ notice before they withdraw. But Article II of the Constitution gives state legislatures plenary power to pick the rules for choosing presidential electors. What if we had a situation where California was in the compact (it has already voted to be in), and the polls show that the national popular vote winner would be the Republican but that if California pulled out of the compact just before the election and voted for the Democrat, that would swing the election to the Democrat? California could claim a right to pull out.

I have been kept up at night recently worrying about crazy Electoral College scenarios. There are plenty of others, including a lack of clarity over what happens if a governor sends Congress two competing slates of electors. Lessig’s lawsuit might solve one Electoral College problem. Or it might open up one or two more. This is no way to pick a president or run a country.