The SCOTUS Electoral College Decision Is a Vote for the Status Quo
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The Supreme Court has ruled unanimously that states can require members of the Electoral College to . That will both preserve the Electoral College as a part of American democracy and ensure it functions as most people believe it does: turning the presidential election into a state-by-state popular contest.
The decision marks a failed attempt by the movement to allow electors to vote their consciences, as Alexander Hamilton had hoped, in favor of letting states dictate the rules, as the Constitution allows.
An American invention
The constitutional system of presidential selection is a worked out at the very end of the Constitutional Convention in 1787.
The framers could not decide whether the choice of a president should be made by Congress or the states.
They also could not agree whether all states should have equal power in the selection, or if more populous states should have more say.
And they didnβt agree whether a stateβs choice should be made by local elites (state legislators) or the masses (all of the voters).
In the end, the created a unique governmental structure that compromised on all of these debates. Unlike many contemporary Americans, the founders were comfortable with such compromises and immediately approved the new mechanism of presidential selection.
A small number of citizens called electors would meet in each state to decide the presidency collectively. Congress would enter the picture only if the electors did not reach a majority decision. The number of electors would equal the number of senators and representatives in Congress, which means that , but still not as much as big states.
State legislatures could use their discretion about how to choose electors, which could result in elitist or popular forms of democracy in different states. Pennsylvania held a popular election in the first presidential contest, allowing voters to . Some state legislatures .
As Americans embraced popular democracy in the decades after the founding, most people began to expect a majority vote in the state would determine its choice. Each state legislature gives the winning party the duty of choosing electorsβwho typically are party members who have pledged to vote for their partyβs presidential candidate during a public meeting of the Electoral College in December.
When that happens, the stateβs Electoral College votes go to the winner of the stateβs popular vote. But some electors have tried to vote for someone elseβwhich is why this important case went before the Supreme Court.
What are βfaithless electorsβ?
When Donald Trump won enough states in November 2016 to be elected the 45th U.S. president, opponents turned to the Electoral College as a last attempt to alter the electionβs result. This became known as the movement.
Alexander Hamilton was an advocate of who did not trust ordinary people to vote. He also thought highly of the Electoral College. In , he asserted that βif the manner of it be not perfect, it is at least excellent.β
His reason was that the selection of the president would reflect only β,β but truly be made by βa small number of persons, selected by their fellow-citizens from the general mass.β
In Hamiltonβs view, these electors would hold the necessary β,β while the masses would likely vote for a president with the β, and the little arts of popularity.β
The Hamilton Electorsβ in 2016 was to persuade enough electors to cast βfaithlessβ votesβagainst the election results of their stateβto switch the outcome. Several celebrities, including Martin Sheen, who played the U.S. president in β,β urged Republican electors to by blocking Donald Trump from winning.
Trumpβs official tally in the Electoral College was 304 to Hillary Clintonβs 227. That doesnβt add up to 538βthe total number of electoral votesβbecause to their stateβs popular decisions. Two Republican electors went their own ways, casting their ballots for John Kasich and Ron Paul. Five Clinton electors also refused to vote with their statesβ majorities: Three chose former Secretary of State Colin Powell and one each chose Sen. Bernie Sanders and Native American activist Faith Spotted Eagle.
Those seven electors were not enough to change the outcome. But what if they had been?
What do faithless electors mean for 2020?
The outcome in 2020 may be closer than in 2016. If Joe Biden wins a few states that Hillary Clinton did notβsay Pennsylvania and Arizonaβbut Trump holds on to the rest of his 2016 states, the Electoral College outcome will be remarkably close. By my count, it could be in the Electoral College. If it is that close, even a small number of faithless electors could change the outcome.
Election Day is always the Tuesday after the first Monday in November, but the day the Electoral College votes is the .
If Americans believe on Nov. 3, 2020, that one person has been elected the next president, but find out on Dec. 14 that it is going to be a different person, it is difficult to predict what the public will thinkβor do.
Faithless electors at the Supreme Court
Even before the 2016 election, some states had tried to limit the discretion of electors. Colorado passed a law that allowed faithless electors to be replaced immediately with an alternate, and Washington imposed a $1,000 fine for electors who voted differently from the public at large. Two faithless electorsβ and βchallenged the ability of states to restrict their discretion under the Constitution.
The was about whether the U.S. still has elements of an elite democracy that cannot be altered by individual states, or if state legislatures could create a popular democracy within their borders by making electors simply registrars of the popular willβeven though the constitutional text (and Alexander Hamiltonβs plans) may suggest that electors should make their decisions freely.
What the Hamilton Electors said was that the old idea of an occasional block to the popular will is still useful. In their view, .
The supporters of faithless electors took a position grounded in the intent of the framers, the usually conservative theory known as .
But that interpretation of originalism ran up against another one: The founders let .
These two originalist positions divide between a higher regard for the original purpose of electors and the original means of selecting and regulating them.
On the other hand, the usual liberal positionββis clear. It supports the idea that the U.S. has evolved into a popular democracy regardless of the original intent. Binding electors to the vote of the state is simply the mechanism to achieve the representative elections that most Americans believe the country already has.
The ruling and the reform
In a rare show of unity, both the originalist and living-constitutionalist justices came together in this decision to uphold the ability of states to insist on popular democracy.
Justice Elena Kagan wrote . In the oral arguments in May, she had asked a : βSuppose that I read the Constitution and I find that it just doesnβt say anything about this subject β¦ What should I then do and why?β
In the decision she observed that β.β Because the text merely says that each state will appoint electors βin such Manner as the Legislature thereof may directβ (), this gives individual states great latitude. If a state has decided that popular democracy within its borders should be the law of the landβas all U.S. states have done over the last two centuriesβthen they can do so without hindrance. She concludes that βthe Constitutionβs text and the Nationβs history both support allowing a State to .β Now, as from almost the beginning of the republic, β.β
While this ruling is a rejection of elitism and a victory for majoritarian elections, it is also a reform ensuring that the Electoral College will remain. Many of the advocates of faithless electors were hoping for the destruction of the Electoral College itself and its . That is now less likely. The Electoral College will function predictably as a state-by-state set of popular elections that add up to an American presidency.
This article was originally published by . It has been published here with permission.
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Morgan Marietta
is an associate professor of Political Science at theΒ University of Massachusetts Lowell.
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