The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A few days ago, I critiqued an argument by Professor Lawrence Lessig that electors should name Hillary Clinton president of the United States because she won the popular vote. Professor Lessig has graciously responded to my post, and I thought I would flag his response and offer a reply.
As Lessig's response clarifies, his proposal is that electors should exercise their best judgment about who should be president in light of our commitment to weighing the votes of citizens equally:
My argument is that an elector should recognize just how fundamental the popular vote is to our understanding of the modern presidency. And more precisely, how important it now is within our constitutional tradition that we weigh the votes of citizens equally. That recognition should in turn lead an elector to avoid casting her vote in away that defeats a popular election.
In Lessig's view, electors should approach the job of ascertaining the best pick for the presidency with a theory of democracy, that of equal vote weight, in mind. That should lead them to favor whoever won the most votes who was also a reasonable choice.
In response to my concern that Lessig's proposal would unfairly change the rules after the vote took place, Lessig writes:
All this, Orin insists, however, should be "announced beforehand so the candidates can try to win under the understood rules." Of course that's right. But Orin agreed the electors exercise judgment. And the principle of one person, one vote was not announced in an op-ed last week. I believe we should apply the rules that should have been clear on January 1, 2016. Those rules include the idea that my vote should not count different merely because of where I live.
I really appreciate Lessig's clarification. Here are two thoughts in response.
First, I continue to think there's a considerable clash between the originalist idea of electors exercising their independent judgment and the modern idea of electors following the nationwide majority vote. Lessig attempts to reconcile them by describing the originalist standard as a view that electors should follow "reasons and inducements which were proper," quoting Federalist 68. The importance of a nationwide majority vote is so clear, Lessig suggests, that it is "proper" for electors to be "induced" by that "reason."
But I think Federalist 68 articulates a different idea. The power to pick the president is not to be given to the people, it says, but rather "to men chosen by the people for the special purpose" of electing the president. These electors should be wise and judicious men capable of deliberating over the best choice and exercising the careful judgment needed to pick the best president based on all the relevant information. They should be, the essay explains,
men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
This sounds really different from just following national vote totals. If electors are just following the national vote totals, then they have no "complicated investigation" to conduct nor any need to "analyze the qualities" of nominees "under circumstances favorable to deliberation." They just have to wait for the national vote count and then pick the candidate with the highest number. That requires no judgment. It wouldn't even matter who the electors are; you could replace the lot of them with a calculator. Given that, there does seem to be a significant clash between the originalist idea of electors exercising independent judgment and the newer idea of electors deferring to national vote counts.
I think there is a broader difficulty with Lessig's argument. At its core, Lessig's view is that there is a "constitutional tradition that we weigh the votes of citizens equally" that should govern election results. Just as a descriptive matter, though, that factual claim strikes me as too broad. A line of important Supreme Court cases applies the principle of "one person, one vote" in some contexts. That's a big deal. At the same time, our constitutional tradition recognizes, and in some contexts directly embraces, the unequal weighing of votes. For better or worse, our constitutional tradition reflects a mix of equality and inequality.
Consider the constitutional text about the electoral college. Article II, Section 1 states that "[e]ach state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress." That's strikingly unequal. Small states get more electoral college power per voter than do large states.
If we're identifying our constitutional tradition, then I think we need to be more specific. The question is not just whether there is a tradition of equal weighing of votes in some areas, but whether that tradition has been understood to govern the specific question of how electors vote for president.
It seems to me that the answer to that question is clearly "no." For better or worse, our understood tradition is the weird winner-take-all, state-by-state system in which the popular vote just doesn't matter. That's what the campaigns assume the rules will be. That's what the media assumes the rules will be. And that's what voters assume the rules will be, too.
Think of what you saw when you turned on the TV on the night of Nov. 8. The talking heads presented the election as a race to 270 electoral college votes based on the winner-take-all state votes, not the nationwide popular vote. The networks called states for Donald Trump or Clinton accordingly. After Trump reached 270 votes based on those assumptions, the networks called the election for Trump. Clinton conceded defeat.
Imagine you had turned on the TV that night and the networks announced that they couldn't call any states because they didn't know yet who won the nationwide popular vote. You would think it a bizarre error, or maybe some kind of joke. It would conflict with settled understandings of how presidential elections work.
Lessig argues that it should have been clear, before the election, that our constitutional tradition rejects that understanding. But the word "should" is doing a lot of work here. It's a normative argument for change. It urges us to rethink the electoral college and replace our existing tradition of inequality with a new tradition of equality. I'm certainly open to that going forward. But it's a call for a big shift in how we think about presidential elections, not just a recognition of a consensus view held before Nov. 8.
That's my sense, at least. Thanks again to Professor Lessig for the excellent exchange.