On “faithless” (but democratically faithful) electors
By Larry Lessig
Nov 11 2016
Joi Ito writes: “So what about this?”
Electoral College Electors: Electoral College Make Hillary Clinton President on December 19
On December 19, the Electors of the Electoral College will cast their ballots. If they all vote the way their states…
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.”