Imagine a nail-biter of a 2020 presidential election in a year already marked by plenty of bitten nails. Imagine, if you will, that the presidential election comes down to just a few votes. No, not your votes; Electoral College votes. Suddenly, for the third time in recent history, a few members of the Electoral College could decide who wins the presidential election.
Civics class reminds us that presidential elections are not directly determined by how many people vote for each presidential candidate. Instead, the voters elect electors, who in turn vote for the presidential candidates.
Civics class reminds us that presidential elections are not directly determined by how many people vote for each presidential candidate.
On Wednesday, the Supreme Court heard oral arguments in two cases that ask whether these electors must always stay faithful to the voters they represent or whether they can instead cast ballots for the candidates of their choosing. While there are good arguments on both sides of this legal question, the court should allow electors to go rogue.
First, a bit about the Electoral College system. Each state has a certain number of electors, equal to its number of federal representatives (members of the House and the Senate). This means there are 538 members of the Electoral College, and a presidential candidate must receive at least 270 to win the presidency.
But who are these 538 electors? They are people chosen by state political parties to vote for the president and the vice president. (Nebraska and Maine have a somewhat different system based not only on the vote of the state, but also on the vote of the districts in those states.) So on the first Tuesday in November, the people vote, but they are actually voting only for a slate of electors, who about six weeks later vote for president (and vice president).
A majority of states and the District of Columbia require that electors take an oath and pay a fine or be removed if they become "faithless electors."
But can states limit electors like this?
The Supreme Court will tell us. The first case before the court asks whether state laws that require electors to be faithful constitute a burden on the First Amendment rights of those electors.
The second case brings up an initial procedural question as to whether the electors have standing to sue and addresses whether the Constitution prevents states from enacting loyalty laws.
The oral arguments Wednesday were robust and, frankly, a thrill to listen to. The justices vigorously questioned the lawyers about the text and original understanding of the Constitution.
The oral arguments Wednesday were robust and, frankly, a thrill to listen to. The justices vigorously questioned the lawyers about the text and original understanding of the Constitution, the custom and practice of states and electors in the centuries since the Constitution was ratified, and a series of potentially applicable laws. In one of the more lighthearted moments, Chief Justice John Roberts asked whether any limits are placed on electors. One of the lawyers suggested that electors must at least vote for a person. Justice Clarence Thomas pushed the point by asking whether an elector could vote for Frodo Baggins, a character from J.R.R. Tolkien's "Lord of the Rings," if he or she desired. (Answer: no.)
This is not an easy case legally or politically. But nothing in the Constitution dictates that electors must vote according to the popular vote in their states. Article II of the Constitution gives the states the power to appoint electors but not to force them to vote a certain way. And this is a good thing. If states could add additional requirements, would they, for instance, require electors to vote only for candidates who visited the state at least once?
The states argue that Article II does give them oversight here. The states point to the fact that the Constitution gives them the power to create requirements for electing presidential electors (like age and residency), so they must also have the power to enforce those requirements. The states also spend a good deal of time focused on past practice.
But what is the point of an Electoral College if the electors are merely rubber stamps? The idea behind the institution was to have a group of people who can act as a filter between the voters and their elected leaders to make sure we don't elect demagogues. The Electoral College, for all of its many, many failings, is meant to protect us from our sometimes passionate and unruly selves. While we can certainly argue about whether or not the Electoral College has served any positive function, it is meant, in part, as a safety net, to protect us from electing unqualified candidates.
The consequences of letting electors vote their consciences could get messy, at best. The voters could feel — and be — disenfranchised. And if vote-changing became common, electors could be subject to weeks of relentless pressure, including perhaps offers of gifts from foreign powers, to change their votes.
And yet, despite the potentially cluttered consequences, we need to let electors be electors. If people are dissatisfied with the system, which we frankly ought to be, it is worth thinking about abolishing it through a constitutional amendment. But first, free electors. Then end the Electoral College.