The Supreme Court indicated on Wednesday that it probably won’t blow up the 2020 election by letting 538 people you’ve never heard of pick the president. This presidential race promises to be one of the most divisive and chaotic in recent history, and courts should not inject any unnecessary mayhem. Wednesday’s cases present a superficial opportunity to send the Electoral College into a death spiral. But in reality, they ask the federal judiciary to make the Electoral College even more dangerous and undemocratic than it already is.
Those cases, Chiafalo v. Washington and Baca v. Colorado, probe the confusing reality of America’s true presidential election, which does not occur on Election Day. Sure, millions of Americans will go to the polls in November 2020 to pick the next commander in chief. But, constitutionally speaking, they will not actually vote for president. Instead, they will vote for electors—typically party operatives whose names may not even appear on the ballot. In December, those electors meet at their state capitols to cast their votes. Thirty-two states and the District of Columbia compel electors to cast their ballots for the winner of the statewide popular vote. The plaintiffs in Chiafalo and Baca are “faithless electors” who sought to buck these laws in 2016 and select a different candidate than the one chosen by voters of their state. They argue that the Constitution grants electors the right to vote for whomever they want. In their view, the statewide vote is essentially advisory and states have no power to punish electors who go their own way.
The best argument for the plaintiffs is Alexander Hamilton’s Federalist No. 68, which envisioned electors as wise men who would exercise independent judgment. The best argument against the plaintiffs is everything else under the sun. From the early days of the republic, states have forced electors to side with the winner of the statewide vote. Nothing in the Constitution clearly prohibits this option; to the contrary, it grants states broad power over their electors. And the practical consequences of a decision for the plaintiffs would be pandemonium: It would leave the race in the hands of a few obscure partisans who would surely face intense lobbying after Election Day. In a close race, a few “faithless electors” could change the outcome, raising grave questions of the winner’s legitimacy.
Harvard Law professor Larry Lessig, who represents the plaintiffs, is aware of that possibility. Indeed, it seems to be his goal. Lessig wants to make the Electoral College so wacky and unpredictable that the entire country turns against it, then adopts a constitutional amendment creating a nationwide popular vote for president. The justices appeared to be aware of this end goal on Wednesday. And they had no apparent interest in facilitating Lessig’s master plan.
“Those who disagree with your argument,” Justice Samuel Alito told Lessig, “say that it would lead to chaos”—that in a close election, “the rational response of the losing political party” would be “to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be.” Lessig told Alito he did not “deny it’s a possibility,” but it’s one that hasn’t happened yet—and even if it does, that’s the Constitution’s fault.
“I want to follow up on Justice Alito’s line of questioning,” an alarmed Justice Brett Kavanaugh said, “and what I might call the ‘avoid chaos’ principle of judging, which suggests that if it’s a close call or tiebreaker, that we shouldn’t facilitate or create chaos.” Lessig responded that “the likelihood” of a chaotic outcome “is extremely small.” Kavanaugh then flipped Lessig’s framing of the case. “You set this up” as “the states versus the electors,” he said. “But isn’t it also appropriate to think of this as the voters versus the electors, and that your position would, in essence, potentially disenfranchise voters in the state?” In other words, if electors can buck the statewide vote, aren’t they nullifying thousands or millions of ballots?
“It’s potentially true,” Lessig admitted. “That’s right, Your Honor.” But Lessig insisted that allowing states to control electors is the greater evil. “There is no tradition in America” of the government “exercising control over a voter, over an elector,” Lessig said. “Maybe in the Soviet Union,” but not the United States.
As that exchange indicates, Lessig’s theory rests on a sleight of hand. He suggests that state control over electors presents authoritarian-style election rigging. But in reality, the states are merely directing electors to respect the result of elections. Lessig’s position isn’t democracy-enhancing—it’s democracy-diminishing.
It is also “pretty limitless,” as Chief Justice John Roberts told Jason Harrow, Lessig’s associate, who argued on behalf of Colorado’s faithless electors. “So the elector can decide, ‘I am going to flip a coin and however it comes out, that’s how I’m going to vote?’ ” Roberts asked Harrow. “Yes,” Harrow said—just like senators can. “They have that same discretion.”
But with senators, Justice Clarence Thomas pointed out, “there’s some degree of accountability for them when they vote a particular way. What’s the accountability here for an elector who strays from what is expected?” Harrow said, “They can be kicked out of the political party.” That consequence seems like small potatoes compared with losing a senatorial election, and it leaves accountability in the hands of the party, not the voters.
Justice Elena Kagan asked Harrow why, in the absence of a clear constitutional command, federal courts shouldn’t just leave states to their own devices. “What would you say if I said that if there’s silence, the best thing to do is leave it to the states and not impose any constitutional requirement on them?” Harrow said there wasn’t silence—though, as Kagan reminded Lessig, there is ambiguity. “Most of your argument depends on a particular reading of the terms vote and ballot and elector,” Kagan said. But “why do these terms necessarily involve choice in the way you suggest?” Put simply, the Constitution uses terms that we associate with free elections today. But are those terms really enough to strip states and their residents of influence over a presidential election?
In light of this skepticism, Noah Purcell, who argued for Washington, and Philip Weiser, who argued for Colorado, had little to do but sound like reasonable defenders of the status quo. They passed with flying colors. A few justices wondered whether their positions would lead to absurd results, as well; Alito, for instance, asked if Washington could choose “12 wise people to be our electors” and let them vote however they want, with the “advice” of the public “through a popular vote.” Purcell responded that “I think they probably could do that.” He is correct that the Constitution allows state legislatures to appoint their preferred electors and ignore or cancel the popular vote. But that is a flaw in the Electoral College itself. It is a reason to replace the entire system, not to let every elector go rogue.
And make no mistake: The Electoral College should be abolished. It is an anachronistic system created to protect slave states and it has no place in American democracy today. Still, the Supreme Court has no good reason to kick off that process by throwing a wrench into the current system and upending an imminent election. Thankfully, a majority of the justices—perhaps all nine—sounded cautious and sensible enough to reject that result. Chiafalo and Baca are, as Weiser put it, “a dangerous time bomb” that could trigger a “constitutional crisis.” But justices across the ideological spectrum seem to recognize that this particular bomb could blow up in their faces.
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