Most Americans probably thought this was already a long-decided issue from their grade school civics classes, but there is always someone out there seeking to overturn or reinterpret norms and accepted law under the Constitution.
Slate legal analyst Mark Joseph Stern reports on today’s Supreme Court decision of note. The Supreme Court Declined An Invitation to Blow Up the Presidential Election:
The Supreme Court declined an invitation to blow up the 2020 presidential election on Monday. The justices ruled unanimously that states may compel electors, the individuals who make up the Electoral College, to vote for the winner of the statewide presidential race by either removing or fining “faithless electors.” In truth, this decision should not have been necessary: There is no serious constitutional argument that states are powerless to dictate electors’ votes. But the nation can breathe a sigh of relief that the court did not take the bait to make the upcoming election even more chaotic.
Monday’s decisions in Chiafalo v. Washington [the controlling opinion] and Colorado v. Baca ask a question so simple that most Americans likely think it has already been settled: Can a state tell electors that they must vote for the candidate who won their state’s popular vote? Most states do exactly that, which makes good democratic sense. If electors could vote for whomever they wanted, then presidential elections would be merely advisory; citizens could vote for president, sure, but electors could choose whether to heed or ignore their decisions. Following the 2016 election, a handful of electors violated these laws. Two states took action against their faithless electors: Washington fined them $1,000, while Colorado removed and replaced them.
Harvard Law professor Lawrence Lessig organized this futile attempt to alter the election’s outcome, and after he failed, he helped the faithless electors file suit against their states. Lessig is no fan of the Electoral College: He intended to render the system so wacky and unstable that Americans would feel obliged to abolish it via constitutional amendment. Lessig’s scheme would certainly have had pandemonic consequences; it would turn the 2020 vote into a symbolic exercise and then let 538 electors—mostly obscure party loyalists—decide the election.
Wisely, the Supreme Court declined to usher in this bedlam. Writing for the majority, Justice Elena Kagan provided a brief and quippy history of the Electoral College with references to Veep and Hamilton. The Constitution gives each state legislature authority to appoint in the manner it chooses. In the early days, most state legislatures just picked electors. But states quickly shifted toward “translating popular preferences” into “Electoral College ballots,” appointing electors who would support the winner of the statewide vote. That practice prevails today: 32 states and the District of Columbia obligate their electors to follow the people’s will. “The Constitution is barebones about electors,” Kagan wrote, but none of its sparse instructions suggest these laws are illegal. “The power to appoint an elector (in any manner),” she explained, “includes power to condition his appointment” upon the duty to support a specific candidate.
There are snippets of historical evidence that cut against Kagan’s claim. For instance, Alexander Hamilton famously wrote that electors should be independent “men most capable of analyzing the qualities” needed for the office, implying that they would exercise their own personal choices. But whether or not most Framers shared Hamilton’s vision, they “did not reduce their thoughts about electors’ discretion to the printed page.” In a concurring opinion, Justice Clarence Thomas, joined by Justice Neil Gorsuch, reached the same conclusion through a different route, declaring that the 10th Amendment preserves states’ authority to control electors’ votes.
Kagan did insert three asides that, in the long run, may prove more important than the actual holding. First, she noted that a state “cannot select its electors in a way that violates the Equal Protection Clause,” meaning it cannot discriminate against electors on the basis of a protected trait like race or sex. Second, she wrote that states cannot impose “new requirements on presidential candidates” that “conflict with the Presidential Qualifications Clause”; in other words, states probably can’t force a presidential candidate to release his tax returns in order to appear on the ballot. Third, Kagan clarified that “nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate.” Thus, if a presidential candidate dies some time between the November election and the December Electoral College vote, electors bound to that candidate may be able to choose someone else.
The Electoral College is an anti-democratic abomination devised to protect slave states, and it continues to operate in a racist manner by amplifying the power of white voters [in sparsely populated rural states]. But the Supreme Court cannot solve this problem by making the institution even less democratic and placing each presidential election in the hands of random party operatives. In this moment of turmoil, the court gifted the country by refusing to replace our flawed status quo with something much worse.
The answer is, as Lawrence Lessig believes, a constitutional amendment to remove this last remaining vestige of the slavery provisions in the U.S. Constitution, and to elect the president of the United States the same way that we elect every other elected office: by popular vote. The candidate with the most votes wins in a democracy.
If the popular vote decided the presidency, it is very possible that George H.W. Bush would have been the last Republican elected president by popular vote in 1988. (His son George W. Bush won the popular vote in 2004, the last Republican to do so, but only by virtue of his being the incumbent president “selected” by five conservative justices of the Supreme Court in Bush v. Gore in 2000).
Imagine how different the composition of the U.S. Supreme Court would be today if the U.S. president was democratically elected. Justices Roberts, Alito, Gorsuch and Kavanaugh would not be on the court, and Clarence Thomas would be the lone Republican appointee, if he decided to stay under these circumstances. And the Article III federal courts would not be packed with unqualified right-wing activist ideologues because there was a Democratic president in the White House.
The gross distortion of our democracy resulting from the Electoral College has caused immeasurable harm to this country. It must be amended.