This week the Supreme Court heard oral arguments in two cases (Chiafalo v. Washington and Baca v. Colorado) involving “faithless Electors,” members of the Electoral College who refuse to align their vote for President with the outcome of the popular vote in their state. Mark Joseph Stern, writing in Slate, and Scott Lemieux at Lawyers, Guns & Money, take the position that Lawrence Lessig took these cases in an attempt to undermine the legitimacy of the Electoral College itself. Stern:

“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.”

Lemieux agrees but points out that Americans don’t seem to mind Electoral College chaos with an invented Lessig quote:

“’If rogue electors throw a presidential election to the losing candidate, the people will rise up and surmount the massive obstacle posed by Article V’s supermajority requirements to institute a national popular vote. If history has taught us anything, it’s that if the Electoral College misfires and installs a massively unqualified president, the people simply will not stand for it.’”

Neither writer challenges the idea that the Constitution allows States to require Electors to vote a certain way, but I’m not so sure. It mandates that States “shall appoint, in such Manner as the Legislature thereof may direct, a number of Electors…” but the Constitution is silent on whether States may add conditions to this appointment. I suspect that even if the Founders didn’t expect Electors to vote their conscience they would have expected state legislators to appoint loyal Electors. It seems to me that Lessig correctly argued before SCOTUS that States lack the power to exercise control over voters or Electors. Stern argues that States are simply requiring Electors to respect the results of an election, but this ignores the fact that, Constitutionally, the actual election took place when the voters appointed the Electors.

Both writers correctly point out that voters choose slates of Electors nominated for the most part by the political parties through a convention process. These are typically long-time party members and activists the Party wishes to honor through this appointment. Technically speaking, voters at the polls choose one of these slates, not the actual Presidential candidate of their choice, but few voters likely realize this. If state legislatures and voters want faithful Electors, they should make this choice more carefully, and States should help them do so.

Since the Parties more or less choose who will vote for President if their candidate wins their State, one would think the faithless Elector problem would be a minor one, and they would be right. Still, this depends as much on adherence to a social norm than a legal requirement. Many states do not bind Electors and they still vote in alignment with popular vote results most of the time. Party loyalty probably has a lot to do with this.

If this norm for some reason changed, however, I’m not sure it would bring the kind of chaos Lessig seeks and the SCOTUS fears. We might instead simply see far more attention paid to just whom States (voters) choose as Electors. If not ceremonial, a different kind of candidate (e.g., Party members with ambition to run for state or local office) might seek the positions and campaign more actively for them.

In any event, Lessig’s core goal is the right one even if his chaos strategy won’t get him there. The Electoral College is an anachronistic and antidemocratic institution devised as a way to secure ratification of the Constitution by slave states. They objected to a popular vote system because free state populations outnumbered theirs unless slaves counted. By counting three of every five slaves for apportionment and then connecting Presidential selection to the number of Senators and Representatives, slave owners could literally cast votes in on behalf of their property in the Electoral College. Shifting to a popular vote system has raises other issues (e.g., the need for recounts in every state in the event of a close election), but it’s a shift we need to make. More on that soon.