The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Suppose you are an "originalist." That is, on matters of constitutional interpretation, you look, first and foremost (and perhaps, if you are truly hard-core, only) at the meaning that the relevant constitutional provisions had at the time of the framing and ratification of the original constitutional text.
Is it constitutional, then, for the presidential electors, when they meet next week "in their respective states, [to] vote by ballot for President and Vice-President" (US Constitution, Amendment XII), to "vote their conscience"—i.e., to cast their ballots for persons other than the ones chosen by the political party, Republican or Democrat, that placed them on its slate of electors in the first place? When a majority of voters in New York state, for example, pulled the lever for Hillary Clinton, they were, of course, actually choosing a slate of electors that had been assembled by the Democratic Party (in preference to the slate assembled by the Republicans, the Libertarians and the Green Party). Is it constitutional for those electors to cast their ballots for someone other than Clinton?
This is the problem of the so-called "faithless Elector," and, as everyone is aware, it is receiving a great deal more attention these days than possibly at any time in the history of our republic. Law professor Lawrence Lessig has famously called on electors to exercise their judgment and to cast their ballots in accordance with the popular-vote majority won by Hillary Clinton.
Putting aside—just for a moment—the question of whether this is a good idea, it does seem to me that the constitutionality of such an action can't be seriously questioned—at least, not if you're an originalist. In the original constitutional scheme, electors really were supposed to choose the president, exercising their discretion and judgment to find the best person for the job. Being chosen as an elector was a high public office (though it had only a single function, and the appointment terminated as soon as that one function had been performed), and the vote for electors was one to be taken quite seriously, because you were picking the people who would choose the next president.
If you question any of this, you should read Robert Delahunty's terrific explication of the history of the electoral "college" (a phrase that, incidentally, was not used in the Constitution, nor in the ratification debates). Delahunty shows—conclusively and quite magisterially, in my view—that the original intent of the Constitution, supported by its text and overall structure, not only permits but also "requires" presidential electors to exercise "discretion and independent judgment" in casting their ballots. As Alexander Hamilton put it in Federalist 68:
It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided [i.e., the president]. This end will be answered by committing the right of making it, not to any pre-established body, but to men chosen by the people for the special purpose, and at the particular conjuncture. It was equally desirable, that the immediate election should be made by 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. [emphasis added]
A lot has happened over the past 230 or so years that has altered our view of the electors and the electoral college. There were, for instance, no political parties and no real expectation that political parties would emerge or understanding of how they would operate, at the time of the framing; it would be (as Delahunty puts it) "absurd to suppose that electors might be either 'faithful' or 'faithless' to their parties' nominees for president" because there were no "parties" and no "nominees." George Washington wasn't the "nominee" of any political party, nor was he, in any sense, "running" for the job. He was chosen by the electors because they thought, exercising their "unfettered" judgment, that he was the best person for the job. [Fortunately, he accepted, however reluctantly, their endorsement.]
[The list of those receiving electoral votes in the first election, in 1789, is interesting: Washington (77), John Adams (34), John Jay (9), Robert H. Harrison (6), John Rutledge (6), John Hancock (4), George Clinton (3), Samuel Huntington (2), John Milton (2) [John Milton!? the John Milton?], James Armstrong (1), Benjamin Lincoln (1), Edward Telfair (1). Of course, before the adoption of the 12th Amendment in 1804, electors cast ballots for two people, without distinguishing between their choice for president and for vice-president; presumably, whoever voted for Edward Telfair was not expressing a preference for Mr. Telfair as president].
But to the originalist, the "faithless elector" is simply performing his or her constitutional duty by exercising independent judgment and discretion in deciding for whom to vote.
And there is perhaps a touch of irony in the fact that Donald Trump, who could well be denied the presidency if enough electors take this route, has called (in the third presidential debate) for the appointment of Supreme Court justices who will "interpret the Constitution the way the founders wanted it interpreted," while Clinton is hardly an advocate of the originalist position that could deliver the office to her.
Should the electors actually take this course? And if so, for whom should they vote?
I agree with co-blogger Orin Kerr's critique of Lessig's view that the electors should "uphold the fundamental principle of one person, one vote" by voting for Clinton because she won a substantial popular-vote plurality. As Orin puts it, there's a "considerable clash" between the originalist idea that electors should exercise their independent judgment—that they should be, in Lessig's nice phrase, "citizens exercising judgment, not cogs turning a wheel"—and Lessig's companion idea of "electors following the nationwide [plurality] vote."
On the other hand, had I been chosen as an elector and were exercising my own independent judgment and discretion in the matter, I certainly would think it eminently reasonable to take into account the fact that a substantial plurality of my fellow citizens appear to view Clinton as qualified to be president. Added to the fact that a number of other candidates are manifestly unqualified, and are, in my judgment, a threat to our constitutional democracy, I'd certainly give faithlessness a long, hard look.