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.
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