The Atlantic

Yesterday, the Supreme Court heard argument on whether the president can break the law with impunity. Today, the high court will consider a smaller issue—whether the electors who choose the president can defy state laws.

Constitutional-law nerds like me are riveted by the case of Colorado Department of State v. Baca—what Erle Stanley Gardner might call the Case of the Errant Elector.

But Jesse Wegman, a member of the New York Times editorial board, told me in an interview this week that it really doesn’t matter: “I don’t think what the Court decides is going to have any impact on how the electoral college works, either for this election or any other election.”

Wegman is worth listening to. Just in time for 2020’s inevitable chaos, he has published Let the People Pick the President: The Case for Abolishing the Electoral College. In the book, Wegman provides a clear, compact summary of the distinctly maculate conception of the electoral-vote system, reviews the many ways it has distorted or harmed American government and politics, and dispels the myth that the “college” was some sort of stroke of genius on the part of the Framers.

To briefly summarize, Wegman argues that the system is a bad idea gone wrong. It was put in place, as many (including me) have argued, not as another firewall to defend slavery but simply because the Framers ran out of time and couldn’t think of another system. It doesn’t protect small states from big ones, it doesn’t provide a refined and deliberative venue for presidential choice, and it doesn’t require a president to have national rather than regional support. All in all, we’d be a lot better off with a popular vote.

But that’s not the issue the Court will consider today. Baca concerns five Democratic electors—four in Washington and one in Colorado—who, after Donald Trump’s victory in the electoral votes on Election Night, decided not to vote for Hillary Clinton (as they had promised). Instead, they picked other candidates. On December 19, the day fixed by law for the electors to vote, three Washington electors voted for Colin Powell and one voted for the Native American activist Faith Spotted Eagle; Micheal Baca, the Colorado elector, attempted to vote for former Ohio Governor John Kasich. Baca’s vote was never counted. Following a state court order, Wayne Williams, the Colorado secretary of state, removed him and required the state’s remaining electors to choose another elector, who voted for Clinton. The Washington electors, following Washington’s state law, were served with $1,000 fines. (Two Republican electors in Texas additionally bolted, one to former Representative Ron Paul and another to Kasich.)

Baca and three of the Washington electors went to separate courts to challenge the removal and the fines. Washington’s state supreme court upheld the fines; but a panel of the U.S. Court of Appeals for the Tenth Circuit decided, 2-1, that Colorado’s law was an overreach—an attempt to exercise a power over electors that the Constitution did not grant.

That was an interpretation of the oracular language of Article II, which says, in part,

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves.

This language is modified by the Twelfth Amendment, passed in 1804 after the Electoral College had already misfired twice:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President ….

The Tenth Circuit majority argued that the text “grants the states plenary power to appoint their electors, [but] it does not provide the states the power to interfere once voting begins, to remove an elector, to direct the other electors to disregard the removed elector’s vote, or to appoint a new elector to cast a replacement vote.”

The two decisions meant there was now a split. The Supreme Court granted review and consolidated them for argument. On Wednesday, the “faithless” electors will be represented by the formidable professor Lawrence Lessig of Harvard—and his presence is important in understanding what was going on. The four electors in this case did not scatter their votes because they had soured on Clinton, the Democratic nominee. Instead, their votes were part of a scheme, promulgated by Lessig and others, called the “Hamilton Electors.” The idea was based on the famous language of “Federalist No. 68,” in which Alexander Hamilton, writing as “Publius,” argued that the electoral-vote system was a wonderful way to pick presidents. Electors, Publius wrote, would be “a small number of persons” who “will be most likely to possess the information and discernment requisite to such complicated investigations.” They would act “under circumstances favorable to deliberation,” and thus ensure that “the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Since Trump was clearly not such a figure, the Hamilton Electors plan went, electors on both sides of the aisle should scatter enough votes to ensure that neither 2016 candidate would get a majority. This would throw the election of the president to the House of Representatives, where the people might be able to persuade a Republican majority to choose someone other than Trump.

The scheme, whatever its abstract merits, misfired in practice. The only practical result was that Clinton got five fewer electoral votes than she had earned, while Trump lost only two.

Much of Wegman’s book is focused on demonstrating the historical mistake underlying the plan. “Electors are today, as they have nearly always been, obedient partisan hacks, rubber stamps for their party’s candidate,” he writes. When they do not function that way, the system is strained almost to collapse.

Shouldn’t we all, 230 years later, follow Hamilton’s grand vision? Wegman shows well that (as I have argued elsewhere) not even Hamilton believed his glowing praise for the system. Indeed, he worried it would go awry in the very first presidential election ever held—an election that seemed to be a prospective cakewalk for George Washington. Wegman quotes Hamilton’s letter to fellow Founder James Wilson on January 25, 1789, on the eve of the first electoral vote in history. “Everybody is aware of that defect in the Constitution which renders it possible that the man intended for Vice President may in fact turn up President,” Hamilton fretted. “Everybody sees that unanimity in [John] Adams as Vice President and a few votes insidiously withheld from Washington might substitute the former to the latter.”

Hamilton didn’t fear that Adams would scheme to replace Washington, but rather that electors opposed to a strong federal government might prefer Adams as a weaker leader. His worries were for naught that year. But in 1796, the system gave the unwilling President Adams a vice president, Thomas Jefferson, who was his most cunning foe. Four years later, it caused a crisis when Jefferson’s running mate, the slippery Aaron Burr, tied with Jefferson in electors and intrigued to become president in Jefferson’s stead.

The Twelfth Amendment fixed that flaw by requiring separate votes for president and vice president, but the electoral system has malfunctioned repeatedly since then, giving the nation popular-vote losers in 1824, 1876, 1888, 2000, and now in 2016. This time, the Framers’ improvisation has nearly wrecked the country.

Wegman argues that the Baca case will not affect anything, because regardless of the election results in 2020 or any other year, it is inconceivable that enough electors will vote against the party they are pledged to, or (this is my nightmare) succumb to bribery of the sort the former Republican presidential candidate Bob Dole speculated about in 1977: In the election of 1976, Gerald Ford (with Dole as his running mate) came within less than 12,000 votes of carrying Ohio. That would have made the electoral gap only half a dozen votes. Dole said, had that happened, “We were shopping—not shopping, excuse me. Looking around for electors … We needed to pick up three or four after Ohio."

In our interview, Wegman dismissed my concerns about an attempt to reverse an election by stealth. “Whichever way the Court goes, I just don’t think it matters. I am yet to be convinced by anyone who makes the case that this is going to throw the election into chaos and the electoral college will in turn become this potential time bomb. I just don’t think it will happen. It has never happened in history. It had the opportunity to happen twice in the past 20 years and it didn’t happen. I just don’t see what the argument is that enough electors will be swayable by some force that is secret to the rest of us to change their vote in an election where they were chosen to vote specifically because they supported their party’s candidate. … If [the Court] rule[s] for Micheal Baca, state parties are just going to get that much more strict in choosing their people, and we will be done with it.”

I am not still entirely convinced, but Wegman makes a good case. Our interview did turn me around on one thing, though. I thought at the time that the Tenth Circuit majority got it right—that the structure of the government and the state-federal relationship meant that once chosen, electors could not be controlled by their state. Wegman points out that the text is straightforward: Electors are to be chosen “in such manner as the Legislature [of a state] may direct.” It doesn’t limit the ability to choose—thus it could be exercised, I think, right up until the votes are cast. Micheal Baca was removed according to Colorado state law. The Washington electors were fined for violating a selection criterion dictated by the legislature.

As Wegman pointed out, “originalists” profess to be governed by the text if the text is clear. It is here, he argued: regulating electors is, from state to finish, a state matter. He predicted that the Supreme Court will agree. “I think they have to go with [the text]. If you are an originalist, you have to go with the Constitution and not The Federalist Papers.”

This story is part of the project “The Battle for the Constitution,” in partnership with the National Constitution Center.

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