Prepare for total chaos. This summer, the Supreme Court will decide whether to completely reshape how the American public elects the president of the United States, and the 2020 election—one of enormous consequence—will be the test run for the new rules.
The general rules for electing the president have been established for centuries: The candidate who receives the most votes in each state wins that state’s electoral votes, and the candidate who wins the most electoral votes becomes president.
But these rules could go out the window when the Supreme Court issues a decision, anticipated by June of this year, on lawsuits out of Colorado and Washington. These cases challenge the constitutionality of legal requirements that presidential electors—the people who physically cast their state’s electoral votes—must vote for the candidate who won the popular vote in their state. The electors bringing these lawsuits argue that the Constitution gives them the right to vote for anyone for president, regardless of the will of the voters in the state they represent.
If, as many experts expect, the Court’s originalist majority agrees with the electors, the entire Electoral College system will be upended just months before voters go to the polls. A ruling to “unbind” presidential electors from their home-state voters will create new legal loopholes at the worst possible time.
First among these: Numerous federal laws require elected officials and policy makers to follow financial ethics and transparency rules. These rules seek to ensure that officials act in the public’s interest rather than for their own financial advantage. Presidential electors, however, have never been considered true elected officials or policy makers, so these laws don’t currently cover them.
If the Supreme Court unbinds presidential electors, the laws will need to be broadened right away to ensure that electors are subject to the same anti-corruption rules as government officials, because they suddenly will be vulnerable to the same sorts of enticements that can sway regular politicians. Electors could legally accept contributions worth millions of dollars in connection with their official duties, and the public would never know. This is not a problem if electors are required to simply follow the will of their states’ voters. But the absence of transparency laws combined with unfettered discretion is a recipe for corruption that could threaten the legitimacy of the presidential election.
Second, the identities of the individual presidential electors will go from irrelevant to crucially important. It will be essential for voters to be able to identify and select electors who will carry out their duties responsibly. Right now, the nomination of electors is a backroom process completely opaque to voters. Electors are not listed on most general-election ballots, and many voters who select a presidential candidate on a ballot don’t even know they’re actually voting for electors, much less have any idea who those electors are.
States will need to urgently reconsider every aspect of nominating and selecting their presidential electors. The nomination process will need to be taken away from the party operatives who currently control it and modernized. Potential electors will need to make public position statements on who they will vote for if elected and convince voters that they will keep that promise. Already-overburdened state officials will need to divert resources from important antihacking and coronavirus-preparation efforts to disseminate extensive information about the new Electoral College rules to voters in a rushed and highly charged preelection environment.
The argument for unbinding presidential electors is based on the premise that in the late 1700s, the Electoral College would gather and deliberate over who should be president. Admittedly, this might have been true in the elections of 1788 and 1792 (which were, in any event, unanimous). In fact, back then many states did not conduct presidential elections at all, instead leaving the choice of electors to state legislatures.
But for more than two centuries, voters in every state have had a direct voice in choosing the president. America’s entire election process has been built around this fundamental popular sovereignty. To revert to 18th-century procedures would be to wrongly ignore the many advances—including several constitutional amendments—that make clear that choice for president now rests with American citizens.
The Supreme Court’s potential overthrow of the long-standing election system could become a catastrophe. If 2020 Election Night results show a close race in the Electoral College, the whims of a few semi-anonymous individuals may hold the nation’s future in their hands. At that point, it will be too late to update the laws that govern the process.
Reasonable people can debate the wisdom of the Electoral College system more broadly. But if that is the process the country will be using, the legitimacy of American democracy demands that the country act now to make sure it is fair, transparent, and protected from corruption. However far from perfect the current system may be, the chaos of an unbound Electoral College would be much worse.