The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In our constitutional system, people vote for president by picking "electors" who pass on that vote as part of the electoral college. Elsewhere in The Post, Harvard Law professor Lawrence Lessig argues that electors should vote for whichever candidate won the nationwide popular vote unless the people went "crazy" and voted for someone outside "the bounds of a reasonable judgment." Because Hillary Clinton won the popular vote, and she is inside those bounds, the electors should not "veto" the public's choice and should name her president.
This isn't my area, but I'm sufficiently unpersuaded that I thought I might respond. It seems to me that Lessig's proposal tries to merge two largely incompatible ideas.
In the first part of the essay, Lessig argues that the electors should exercise independent judgment because that was the original understanding of how the electoral college would work (citing Federalist No. 68). According to Lessig, disagreeing with that step would be "an insult to our framers" that "should be rejected by anyone with any understanding of our democratic traditions."
In the second part of the essay, however, Lessig argues that the electors should endorse the national popular vote winner because they should recognize the principle of "one person, one vote" enunciated by the Supreme Court in the 1960s. The electoral college system seems to violate that principle, if electors follow the votes in their states, because the Constitution fixes the number of electors for each state based on the sum of its senators and representatives rather than in proportion to its population. Voters in small states have more electoral college impact than voters in large states. That result "denies Americans the fundamental value" of "equal citizenship," Lessig argues. The principle of "one person, one vote" should lead electors to vote for the popular vote winner instead of the vote-winner in their own state, at least if the national public didn't "go crazy."
This isn't my area, as I said before, but I'm not sure these two ideas can be coherently merged. The original design of the electoral college seems incompatible with the version of "one person, one vote" that Lessig offers. It's true, at least as I understand it, that the original design of the electoral college was for electors to exercise their independent judgment about who would be the best president. But if that's right, it's hard to see how electors would be exercising their independent judgment by deferring to the popular vote. That's especially so because they would be deferring to the popular vote in other states that didn't even vote for them as electors.
Similarly, if electors should follow "one person, one vote" at a national level, I don't see why they should ignore that principle if they think "the people [went] crazy." It's hard to have electors follow an ancient principle that gives them independent judgment and yet simultaneously follow a newer principle that takes their judgment away. The two ideas don't readily mix.
More broadly, I would think that any proposal for how electors should vote should be settled before an election rather than offered to resolve an election that already occurred. No voting system is perfect. But whatever the system is, its rules should be announced beforehand so the candidates can try to win under the understood rules.