Campaigns/Elections

The Return of the Faithless Elector

Are we ready for a return to the "original meaning" of the Electoral College?

|The Volokh Conspiracy |

You may recall much discussion, in the aftermath of the 2016 presidential election, of the possibility that presidential electors—the folks who, under our constitutional scheme, actually elect our president and vice-president**—can (or should) exercise their independent judgment and discretion and cast their ballots for the candidate they feel best suited to assume the office of President, even if that candidate lost the popular vote in the elector's home state.

** "Each 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." These presidential electors shall then "convene in their respective states" and "vote by [distinct] ballot for President and Vice-President"; the person "receiving [a majority] of votes for President shall be the President … and the person receiving [a majority] of votes for Vice-President shall be the Vice President."  U.S. Const. art. II, § 1, cl. 2, and Amendment XII.

Last week, the 10th Circuit Court of Appeals weighed in on this "faithless elector" question in its opinion in Baca v. Colorado Dep't of State, invalidating the Colorado Secretary of State's efforts to control voting behavior by the State-appointed presidential electors.  It's an important decision, and it might—might – lead to far-reaching changes in the way that Americans conduct and view their presidential elections.

You would be forgiven for not paying a lot of attention to the inner workings of the (oddly-named) "Electoral College"—the actual institution, comprised of 538 State-appointed presidential electors—because under long-standing practice, developed over the past 220 years or so, the Electoral College doesn't really do anything other than to formally and ceremonially ratify the results of the presidential election. We hold an election, we count the votes for each candidate in each of the States, we place the number of presidential electors ("electoral votes") to which each State is constitutionally entitled (#Representatives + #Senators; see above) into the winning candidate's column, we add up the columns, and that's that—game over.  The Electoral College's formal ratification of the results a month or so post-election is a mere after-thought, a little bit of Kabuki democracy that has only symbolic significance.

It is abundantly clear that the Electoral College was not designed to have this kind of purely ceremonial function**. Under the Framers' original conception, the Electoral College was to be a true electoral body, its members chosen by the people at large (at least the people who were entitled to vote) for the express purpose of choosing the President and Vice-President. That's why they were called "electors"- people who "elect."

** For the record, Michael Rosin and I submitted an amicus brief in this case making this point (available here).  David Kopel, here on the VC, and Robert Delahanty in the Cardozo Law Review, have also marshalled the relevant historical information in support of this position.

The Federalist Papers, for instance, couldn't be clearer on this score.  The Electoral College was, as Hamilton put it in No. 60, part of a balancing scheme using "dissimilar modes of constituting the several component parts of the government: The House of Representatives being elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people." It was part of a kind of "distillation" process that would help ensure, hopefully, that the officers of the new federal government would be the most qualified people (and would, because of their different modes of selection, balance out each other's different passions and predilections); the people would directly elect their Representatives, and for the other federal offices they would elect people who would elect people (their State legislators for their Senators, their presidential electors for the president and vice-president).

The Supreme Court has, on a few occasions, acknowledged (while sounding somewhat embarrassed) this divergence of long-standing practice from the Framers' original conception.  See McPherson v. Blacker, 146 U.S. 1, 36 (1892) ("Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the chief executive, but experience soon demonstrated that . . . they were so chosen simply to register the will of the appointing power in respect of a particular candidate. In relation, then, to the independence of the electors, the original expectation may be said to have been frustrated"); Williams v. Rhodes, 393 U.S. 23, 43–44 (1968) (Harlan, J., concurring in the result) ("The Electoral College was created to permit the most knowledgeable members of the community to choose the executive of a nation whose continental dimensions were thought to preclude an informed choice by the citizenry at large."); Ray, 343 U.S. at 232 (Jackson, J., dissenting) ("No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices. Certainly under that plan no state law could control the elector in performance of his federal duty, any more than it could a United States Senator who also is chosen by, and represents, the State.")

How, then, did we get from there to here?  It took a constitutional amendment (XXVII) to remove State legislators from their position as Senatorial "electors"; but somehow the role of the Electoral College has dramatically changed without any modifications in the relevant constitutional provisions (since 1804, the date of adoption for Amendment 12). What happened?

What happened was that each of the States—who have the responsibility for appointing presidential electors (see note above)—requires presidential electors to pledge, prior to their appointment, to cast their ballots precisely as they are told to do by the State government, and in all States (except for Nebraska and Maine, which have proportional schemes for allocating their electoral votes) the governing rule is that the electors will vote for the candidate who received a plurality of the votes cast in the State.***

***If you're interested, there's a good summary of this process here at the National Archives website, and the National Ass'n of Secretaries of State has put together an admirable compendium of each State's laws regarding presidential electors here.

The Supreme Court upheld this practice against constitutional attack in Ray v. Blair, 343 U.S. 214 (1952), holding that the pledge requirement was "an exercise of the state's right to appoint electors in such manner, subject to possible constitutional limitations, as it may choose."

So when Michael Baca was appointed as one of Colorado's nine presidential electors***, he (along with the other eight electors) took, as required by Colorado law, an oath affirming that he would cast his electoral ballot for the candidate who received the highest number of votes in the State on November 8—Hillary Clinton. Despite having taken the oath, Mr. Baca crossed out "Hillary Clinton" from his presidential ballot and wrote in "John Kasich." (He was, reportedly, concerned that Russian interference in the election on Clinton's behalf [!] might have influenced the electoral results).

*** Baca was appointed as an elector because he had been placed on the Colorado Democratic Party's list of proposed electors back in April, 2016.  Colorado, like most states, requires all candidates appearing on the presidential ballot to submit a slate of presidential electors; after the election, the Colorado Secretary of State certifies the vote totals and appoints the members of the winning candidate's slate to serve as Colorado's presidential electors. Because Clinton carried the State, Baca (and the others on the Democratic slate) received his appointment.

Colorado's Secretary of State then removed Mr. Baca as an elector, refused to count his vote, and appointed a substitute elector who cast her ballot for Ms. Clinton.

Baca filed suit, arguing that his removal, and the nullification of his vote, violated his constitutional rights under the Twelfth Amendment. The district court dismissed his claim, on several alternate grounds: that the claim was moot, that Baca lacked standing to press the claim, and that there was in any event no viable constitutional claim to pursue.

Last week, the 10th Circuit reversed on all fronts. After a long and complex discussion of the standing and mootness questions (through page 56 of the opinion), the court proceeded to resolve "whether Colorado may constitutionally remove a presidential elector during voting and nullify his vote based on the elector's failure to comply with state law dictating the candidate for whom the elector must vote."

The answer: No, it may not.

To be sure, "the state legislature's power to select the manner for appointing
electors is plenary." Bush, 531 U.S. at 104; see also McPherson, 146 U.S. at 35 ("In
short, the appointment and mode of appointment of electors belong exclusively to the
states under the constitution of the United States."). The states therefore have broad
discretion in the process by which they select their presidential electors. But the
question here is not over Colorado's power to appoint electors; it is whether this
appointment power includes the ability to remove electors and cancel already-cast
votes after the electors are appointed and begin performing their federal function.

According to Mr. Baca, the states have no right to remove appointed electors
or strike their votes because the Constitution provides no role for the states after
appointment. Based on a close reading of the text of the Twelfth Amendment, we
agree …  (p. 79-80, italics added)

This seems correct to me, as a constitutional matter.  The idea is pretty straightforward:  Colorado can appoint electors pretty much any way it wants to.  But once the electors have been appointed, they are officers of the federal government performing a federal function, and States do not have the constitutional authority to interfere with the way that federal officers perform their federal functions. Colorado can require each elector to take an oath of fidelity to Colorado's rules regarding the exercise of those federal functions as a pre-condition of appointing someone to the job; but it cannot enforce that oath via removal and nullification.

So where does this leave us? This decision does not, of course, establish "the law of the land." It could be overturned, either by the 10th Circuit en banc or the Supreme Court (which almost certainly will be called upon, at some point, to rule on the question).

And I suppose that even if it were the law of the land, it might not have much impact on our presidential elections.  After all, the political parties will still be able to get "their people" appointed, and how many electors, having been nominated as an elector by one of the political parties, will want to vote against their party's candidate in the final balloting (even if they have the constitutional right to do so)?

But let us imagine the unimaginable—a useful thought experiment, especially, I would think, for adherents to the "original meaning" of the Constitution.  What if we actually ran our presidential elections as the Framers intended—i.e., what if we committed the decision of who would become our president to this group of 538 people, each of whom had been elected by voters in one of the States for the sole purpose of choosing, freely, the candidate they believed best suited to the office?

I take it that a strict originalist would say: that was what the Framers intended, and the Constitution has not been modified so as to alter that structure, so … Yes, that is precisely what the Constitution requires.

One thing is pretty clear: that would be a very, very different presidential election process than the one we have had for the last 200 years. Which is not to say it wouldn't be an improvement over our current practice, which has delivered unto us an individual manifestly unfit to occupy the office. Perhaps the choice of president, as Justice Harlan put it, really does "preclude an informed choice by the citizenry at large," and that a small group exercising the power by proxy would produce better results. There is something intriguing about the notion of you and I voting not for president, but for people to whom we delegate that choice, people we trust to exercise their discretion and their judgment wisely, and there would, presumably, be campaigns mounted not by presidential candidates, but by electors: "Trust me to choose your president." The problem of elector corruption, on the other hand, could prove insurmountable; with a group that small, the price of buying the presidency would be relatively manageable and possibly uncontrollable.  It would be a strange world indeed.

NEXT: Planned Parenthood Succeeds in Getting Missouri's 8-Week Abortion Ban Blocked, but Rule Against Race- or Sex-Selective Abortion Remains in Place

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  1. which has delivered unto us an individual manifestly unfit to occupy the office.

    Just couldn’t resist, could you?

    Trump is a buffoon, economically ignorant and proud of it, bigoted, and did I say a buffoon? But he is no more unfit to hold office than, say, Hillary, who is far more corrupt, has broken more laws while in office, and has fewer principles than Trump.

    Trump has the one virtue of doing what he said and saying what he will do, which makes him about the closest thing there is to an honest politician. Whether that virtue outweighs the rest of the baggage is debatable, but the populace as a whole seemed to think so, and is surprisingly consistent in their support.

    1. You can just see Post salivating about Trump electors defecting next year.

    2. Not even a Hillary fan but to argue she is more corrupt is laughable. She’d be more of the same from before but a far cry from the laughingstock that is Trump.

      You couldn’t resist defending Trump as if he’s normal huh?

      1. You couldn’t resist jumping to the conclusion that I was defending Trump, could you?

        The difference between the two is that Trump doesn’t hide his biases. His corruption and idiocy are right out in the open. How did Bill and Hillary get so rich on $400K a year? Why does she pretend to be in favor of women’s rights when she spent so much of her life fraudulently defending a known rapist and castigating his victims? Why does she pretend to be so ignorant about mail servers and the laws prohibiting them?

        She’s far more corrupt than Trump.

        1. The only evidence that Trump is “corrupt” is the oddball theory that normal, everyday business income is unconstitutional somehow.

          Dems only nominate lawyers so they don’t understand business.

        2. How did Bill and Hillary get so rich on $400K a year?

          Isn’t that pretty well understood to be largely speaking fees? Bill had an extended run after he left the White House, averaging something like $200K per. It’s not unusual that ex-presidents are in demand (in 1989 Reagan was paid $2M for a single engagement in Japan), what is different was his longevity and that we know so much about these payments because they happened while his wife was still in office and so were subject to mandatory disclosure.
          Of course many suspect that there must have been quid pro the quo, but that doesn’t follow. The fees are not outrageous and there is evidence that he was justifiably in demand in the world of high-profile guest speakers. From a 2014 WaPo article:

          “He’s a stud,” said Anthony Scaramucci, founder of SkyBridge Capital, which paid Clinton $175,000 to address its annual investment conference in 2010. Clinton’s speech at the Las Vegas confab was so riveting, Scaramucci said, “there was nobody at the Bellagio cabana sunning himself when President Clinton was in the ballroom speaking.”
          […]
          Scaramucci, the hedge fund manager, said he credits Bill Clinton with helping to put his annual SALT conference on the calendar for many financiers. After Clinton’s appearance, he said, conference attendance grew by a third. And citing Clinton helped Scaramucci persuade other big-name speakers to appear in later years, including George W. Bush and former French president Nicolas Sarkozy.
          “When you get the big dog, you can get the rest of the people to come after him,” said Scaramucci, a top Republican fundraiser. “President Clinton single-handedly helped to institutionalize and bolster the prestige and credibility of our event.”

      2. – “You couldn’t resist defending Trump as if he’s normal huh?”

        How accustomed to being thoroughly insulted are you that you think…

        “Trump is a buffoon, economically ignorant and proud of it, bigoted, and did I say a buffoon?”

        …sounds like a defense of someone?

    3. Agreed on all of this, although, Trump is simultaneously somewhat economically ignorant while also being relatively more correct in his instincts about the economics of trade and immigration than most of the chattering class and the political establishment whose bidding they do.

      1. Riiiight, he’s so damned clever he can be both right and wrong about trade at the same time. A quantum cat of a President, that’s a new one.

        1. No, ignorant isn’t necessarily the same thing as being wrong. He’s quite ignorant both of factual details and nuances of theory. But he’s still largely correct in his bottom line conclusions about trade, which have been contrarian to the status quo thinking. Although, it seems Washington has really come around to agreeing with Trump re China specifically, perhaps not on methods but on objectives. Except for Chuck Schumer who has been fully on board with all of it from the start.

          1. No, he is flat wrong and inconsistent and proud of it. He says tariffs are not taxes and are not paid by Americans and yet somehow discourage Americans from buying more expensive goods because of the taxes which are not tariffs, and he postponed the September taxes tariffs Chinese taxes until after the Christmas rush because he didn’t want to mess with Christmas shoppers which couldn’t happen anyway because they are paid by Chinese.

            Got that? Good, you are as ignorant and illiterate and inconsistent as Trump.

            He thinks trade deficits actually exist, that bilateral trade deficits are a real thing, that exports are good and imports bad, and in fact that all exports and no imports would be just Jim Dandy.

            He thinks making stuff I buy more expensive, so I have less money to buy other things, somehow puts more Americans to work.

            He thinks preserving some American jobs, at the expense of losing far more American jobs, is somehow worth several hundred thousand or even a few million dollars in taxes redistributed from all Americans.

            He’s a damned fool when it comes to trade, and that’s even assuming you think it’s just fine that he has the moral authority to mind my business.

            1. Oh my. What you’ve covered here is very shallow, and mostly irrelevant political posturing and semantic arguments.

              Do you think we should be enthusiastically enabling and accelerating the rise of a communist global superpower?

              Do you acknowledge that Trump is in favor of reciprocal, bilateral free trade, but not unilateral “free trade” and his efforts are toward that end?

              Are you aware of the intellectual property issues in China?

              Do you think it would be acceptable to outsource our most high tech manufacturing, defense technologies, and sensitive high tech infrastructure components, to a global communist superpower?

              Please respond to Adam Smith, The Wealth of Nations:

              Tariffs may be used to achieve better reciprocal trade terms “There may be good policy in retaliations of this kind, when there is a probability that they will procure the repeal of the high duties or prohibitions complained of. The recovery of a great foreign market will generally more than compensate the transitory inconveniency of paying dearer during a short time for some sorts of goods. To judge whether such retaliations are likely to produce such an effect, does not, perhaps, belong so much to the science of a legislator, whose deliberations ought to be governed by general principles, which are always the same, as to the skill of that insidious and crafty animal vulgarly called a statesman or politician, whose councils are directed by the momentary fluctuations of affairs.”

              Cratering millions of jobs all at once, and replacing them with irreversible, disastrous government welfare state dependency, and opioids, is so grossly incompetent and malicious it should be a crime “Humanity may in this case require that the freedom of trade should be restored only by slow gradations, and with a good deal of reserve and circumspection. Were those high duties and prohibitions taken away all at once, cheaper foreign goods of the same kind might be poured so fast into the home market, as to deprive all at once many thousands of our people of their ordinary employment and means of subsistence. The disorder which this would occasion might no doubt be very considerable.”

              A government policy of putting our own domestic industry at a severe disadvantage is so stupid it never ceases to amaze “It will generally be advantageous to lay some burden upon foreign industry for the encouragement of domestic industry, when some tax is imposed at home upon the produce of the latter. In this case, it seems reasonable that an equal tax should be imposed upon the like produce of the former. This would not give the monopoly of the borne market to domestic industry, nor turn towards a particular employment a greater share of the stock and labour of the country, than what would naturally go to it. It would only hinder any part of what would naturally go to it from being turned away by the tax into a less natural direction, and would leave the competition between foreign and domestic industry, after the tax, as nearly as possible upon the same footing as before it.”

              Strategic capabilities need to be preserved and protected “It will generally be advantageous to lay some burden upon foreign industry, for the encouragement of domestic industry, when some particular sort of industry is necessary for the defence of the country. The defense of Great Britain, for example, depends very much upon the number of its sailors and shipping. Defense is of much more importance than opulence.”
              and
              “The Act of Navigation very properly endeavours to give the sailors and shipping of Great Britain the monopoly of the trade of their own country, in some cases, by absolute prohibitions, and in others, by heavy burdens upon the shipping of foreign countries. The Act of Navigation is, perhaps, the wisest of all the commercial regulations of England.”

              1. So Smith thought tariffs might be used carefully, for specific objectives. As a practical matter, that tends not to work, but even so, if you think that’s what Trump is doing you’re delusional.

                1. You should market yourself as an economic advisor because every country on Earth could apparently benefit from you explaining why they are all 100% wrong.

                  1. Were you trying to demonstrate logic fallacies by example? If so, well done.

            2. Everything he said, according to you, is correct though.

              1. Tariffs function like taxes in an academic sense, but to call a tariff a tax is blatantly wrong and not nuanced in the slightest. The transfer of surplus (read: value) resulting from a tariff is not 100% paid by the consumer, unlike taxes.
              2. Tariffs can, depending on the situation, not be paid by the consumers buying end-user goods. It depends entirely on the market. One of the major differences you’ll notice between actual economists and political partisans is partisans deal in absolutes (like Sith) while economists’ favorite answer is “it depends.” That’s because economics is extremely complicated and not scientific law. Every principle is fundamentally predated on human behavior; when our behavioral assumptions are incorrect, theories fall apart.
              3. Trump literally said, and I quote “Just in case some of the tariffs would have an impact on U.S. customers.” Christmas is a stupid excuse and a red herring. Christmas is 4 months away; G7 was a week away. Read between the lines.
              4. Trade deficits exist. They’re real. It means we’re a net importer. That isn’t necessarily good for an economy, especially if we want to have opportunities at every rung of the socioeconomic ladder. He’s not wrong either about money leaving our economy. When you’re a net importer, you’re transferring income out. Of course you can buy cheaper goods, but the Chinese aren’t buying back from us. When you buy American, you most likely pay more, but an American now has the ability to transact, most likely within America. Almost all studies about tariffs completely fail to examine this impact and the subject is taboo in economics, but gravity was once taboo as well. That didn’t mean it failed to affect people who didn’t believe in it. The rest of your comments about his views are assertions, nothing more.
              5. Making stuff you buy more expensive does not in fact put Americans to work, but it does affect the market in which the stuff you buy is sold. This may in turn lead consumers to change their habits and buy from producers who do put Americans to work. As always, it depends.
              6. Aside from the political nonsense that typically accompanies claims that government policies have single-handedly saved or destroyed jobs, if you were somehow able to isolate all those factors and hold tariffs constant, again, it depends.
              7. For a damned fool, he sure does get a lot done, put pressure on people who need it, shift the discourse, occupy your headspace to this extent, and surround himself with people who most certainly are not damned fools when it comes to such matters. Maybe you just don’t know anyone personally who has worked as an executive for a large (>$1b) business, but most executives are like this. You aren’t supposed to be a subject area expert on every single thing. You focus on the big picture (in this case, larger goals like redeveloping American manufacturing, fighting back against China, etc.) That’s why most people have very negative prejudices about corporate executives. From the outside, it seems like all they do is sit in meetings and make money while everyone else does the hard work.

              1. Almost all studies about tariffs completely fail to examine this impact and the subject is taboo in economics,

                BS.

                Do you seriously think you have discovered a point that has been completely overlooked by economists for more than two centuries, or suppressed by a centuries-long conspiracy among them?

                surround himself with people who most certainly are not damned fools when it comes to such matters.

                Peter Navarro is most definitely a damned fool on trade.

                1. Bernard,

                  Why do you “seriously think you have discovered a point that has been completely overlooked” by every other country in the world? They all employ tariffs and similar measures.

                  Seriously, how is it that China is such a damned fool and so stupid compared to your enlightened self? They slap tariffs on the U.S. in “retaliation” and that’ just the tip of the iceberg.

                  It’s quite shocking to realize that every nation on Earth is 100% wrong, and if only they would listen to bernard11 and the “economists” who get paid to write what he reads, they would all see the light change course 180 degrees.

                2. Did you major in econ? Because I did and tariffs are most certainly taboo. Everyone knows they create deadweight loss in an individual market and that’s where the conversation ends most of the time.

                  A lot of economic concepts are long overlooked and a lot of incorrect concepts are still believed today. For instance, even though it has been thoroughly debunked and is effectively the flat-earther movement of economics, there are still people who advocate Marxist policies based on the surplus value theory of labor. This theory supposes (extremely incorrectly) that any profit generated is the direct result of labor, thus justifying his assertion that profit is theft and using violence to retake stolen profits from capitalists and redistribute them to the workers. This theory completely negates the value added through the work of the capitalist, the risk incurred in producing/maintaining/supplying capital, etc. It’s still an extremely mainstream theory, with almost every Democrat candidate (and the leftist economists who support them) advocating it in some form or another with their criticisms of corporate “greed” and excessive profits.

                  1. I majored in math. Did graduate work in finance and economics.

                    You can find tons of research on tariffs.

                    A two-second effort on Google reveals at least three journals devoted to trade issues:

                    This. And this.And this.

                    Do you really imagine that there is nothing about tariffs in there. Maybe there’s more to economic research than you learned as an undergraduate.

                  2. My response is being held, presumably because I included too many links.

                    The links were to various journals that specialize in international trade, just to demonstrate that there is in fact active research in this area.

                    Also, I majored in math and did graduate work in finance and economics.

      2. relatively more correct in his instincts about the economics of trade and immigration

        No. His instincts on both are terrible.

        And even if you share his political attitudes towards immigration, you can’t defend the idea that his instincts on trade make an iota of sense. They don’t.

        1. You’re wrong, but don’t take my word for it. Try The Wealth of Nations by Adam Smith.

          https://nationaleconomicseditorial.com/2018/07/28/interview-adam-smith-tariffs/

          1. The link won’t load, but if that link purports to show that Adam Smith would approve of Trump’s tariffs, you are a dupe or a liar. Adam Smith was as free a trader as they come and would be horrified by Trump’s idiocy.

            1. Try this link. If that doesn’t work, google “Adam Smith on Tariffs: an Interview”

              I’m interested in your response after reading it.

            2. Who cares what Adam Smith thought about tariffs? Asking Adam Smith about economics is like asking Isaac Newton about particle physics. It’s not that he was rubbish, it’s just that there’s been some more work done since.

          2. Trump’s positions on tariffs are inconsistent not just with reality, but with each other. They literally cannot be all correct unless he is literally that famous quantum cat.

            If you cannot see that, it is only because you are willfully blind.

              1. Are you ignoring the main argument – that Trump contradicts himself?

                No amount of cherry-picking of Adam Smith as to try and pretend he was protectionist will help you with that.

                1. Trump contradicts himself, and so do all other politicians. That’s not the main argument, and you are the one who is ignoring the main argument.

                  The main argument is not about a sterile, semantic question like what is or what is not “protectionist” or what is or what is not “taxes.” Feel free to respond to actual substantive points if you’re able (you’re not).

    4. But he is no more unfit to hold office than, say, Hillary, who is far more corrupt, has broken more laws while in office, and has fewer principles than Trump.

      If you believe that, you deserve being screwed over by your President on a daily basis, as indeed you are…

      1. Taxes cut, low unemployment, continued economic growth, re-shaping the courts.

        More “screwing over” please.

        1. Tax cut? Really? You think you got one? Unless you’re richer than I had you pegged for, I doubt it.

          As for the others, if you think you owe any of that to Trump, I have a bridge you might like to buy.

          Meanwhile he puts his relatives in charge of peace in the Middle East, organises summit meetings in hotels he himself owns, has his cabinet members sing his praises in public in a way that would make the dictator of Turkmenistan blush, and rips up all the unwritten norms that made the US constitution work for the last 200+ years.

          As many of the Conspirators try to explain time and again: Constitutions are more fragile than they look, and you’ll miss it when it’s gone.

          1. “Tax cut? Really? You think you got one? ”

            Yes I did. As did most everyone.

            Married filing jointly (2018)[23]
            Under previous law Under TCJA
            Rate Income bracket Rate Income bracket
            10% $0–$19,050 10% $0–$19,050
            15% $19,050–$77,400 12% $19,050–$77,400
            25% $77,400–$156,150 22% $77,400–$165,000
            28% $156,150–$237,950 24% $165,000–$315,000
            33% $237,950–$424,950 32% $315,000–$400,000
            35% $424,950–$480,050 35% $400,000–$600,000
            39.6% $480,050 and up 37% $600,000 and up (per wikipedia)

            1. After my deductions got changed, I sure ended up paying more.

              1. Sounds like an issue with your state.

          2. “Meanwhile he puts his relatives in charge of peace in the Middle East, organises summit meetings in hotels he himself owns, has his cabinet members sing his praises in public in a way that would make the dictator of Turkmenistan blush, and rips up all the unwritten norms that made the US constitution work for the last 200+ years. ”

            Mideast peace. LOL. Like that is going to happen no matter who is “in charge”. Some resort is getting the G-7, might as well be him, they are not staying in rentals picked off the internet. Oh noes, he likes flattery so people flatter him. Unwritten norms, like elector college electors voting as they wish?

            None of these things are “screwing” me.

      2. Ya know what? I get screwed over by government and politicians no matter what. If you think I personally chose Trump and got what I deserve, you are even dumber than Trump and you also deserve him.

    5. Trump has the one virtue of doing what he said and saying what he will do,

      You are delusional. Or dishonest. Or both. Which is the definition of a Trumpkin. Trump lies about everything, including what he did, what he’s doing, and what he’s going to do.

      but the populace as a whole seemed to think so, and is surprisingly consistent in their support.

      Presumably you didn’t pay attention to the election, or to any news over the past four years, and so failed to notice that (1) most people did not support him; (2) of those who did, many did so not because they saw any such virtue in him but because they detested Hillary; and (3) most people continue to not approve of or support him.

  2. I think you use the phrase “original meaning” too loosely and should rather call it “original intent”. Just because it didn’t turn out they the framers expected doesn’t mean the “original meaning” has changed, as this ruling confirms.

    1. <>

      That’s an oxymoron if ever there was one. The “meaning” can change, but the “original meaning” can not.

  3. The EC is an anachronism that has outlived whatever short life of usefulness. Should be done via popular vote. Electors already are skewed towards small nowhere states via the 1929 Reapportionment Act that deprives bigger populations of their rightful power.

    The Senate is still the check for smaller states to buck legislation. Twice in the past 2 decades we’ve given the presidency to the loser and one being supremely unqualified. Any argument for the EC at this point seems like an affront to a proper representation of the people.

    1. “bigger populations of their rightful power”

      Yes, lets NY and California determine everything.

      1. Let’s let the people determine things. “NY and California” are places – that’s all.

        Why should a resident of Wyoming have more influence than a resident of one of those states, or any other? It’s nonsense.

        1. Change the Constitution then.

          You are mad at the EC because the rightful queen was usurped by the BadOrangeMan. Its just situtational outrage.

          1. You’re a bad mind-reader.

            And saying “Change the Constitution” is no argument, just a big “Screw you.” In line with your usual comments.

            1. “Change the Constitution” is not an argument, but “Change the interpretation by packing the court” is?

              Jeez, a new low even for you.

              1. Well, that’s largely what the GOP is doing – changing the interpretation by stacking the courts with right-wing nutjobs.

                That they are not actually increasing the size of the courts is irrelevant, because they don’t need to, but they are, nd have, used every means at their disposal to do that.

                Apparently, you think that anything McConnell and Co. do is fine, so long as it’s legal, or close to it, but you will object vociferously if the Democrats use legal strategies you don’t like to achieve their aims.

                IOW, you haven’t made an argument either, just a hypocritical accusation.

                1. “Well, that’s largely what the GOP is doing – changing the interpretation by stacking the courts with right-wing nutjobs.”

                  And that’s what the Democrats were doing under Obama when they had the chance, stacking the courts with left-wing nutjobs. And then the Republicans were doing it under Bush when they had the chance. And the Democrats under Clinton . . .

                  1. OK, then. Both sides do whatever they can get away with. The courts are political.

                    So what is your complaint?

                    1. I was assured that we “do not have Obama judges or Trump judges, Bush judges or Clinton judges” … so how can the courts be political?

                    2. “The courts are political.”

                      No, judicial appointments are political.

                      “So what is your complaint?”

                      Your selective outrage at one side.

        2. bernard, How about we let a resident of Wyoming have more influence in Wyoming, and a resident of California have more influence in California?

          That’s the way it was supposed to work, with a federal government that was sharply limited in its powers and state governments that mattered more.

          Why not just stop having the residents of California and Wyoming impose their views on each other?

          1. The Articles of Confederation failed, ML.

            1. The US Constitution also contemplated a federal government sharply limited to enumerated powers, with states being more relevant to most affairs other than international affairs.

              1. The Constitution allowed a lot more than having the residents of California and Wyoming impose their views on each other?

                Then we had the Civil War, and passed subsequent Amendments that did as much as the founding to ensure a government of the people, by the people, and for the people.
                Because your inchoate weak government vision was insufficient.

                And just about every other modern country in the world has followed us in that fashion.

                1. “Because your inchoate weak government vision was insufficient.”

                  No it wasn’t. The strength of the federal government had virtually nothing to do with the Civil War.

                  “Then we had the Civil War, and passed subsequent Amendments that did as much as the founding to ensure a government of the people, by the people, and for the people.”

                  Which has virtually nothing to do with the question of whether the federal government remained a government of limited and enumerated powers, so super.

            2. Considering the egregious abuse of the Commerce Clause, and the regrettable (perhaps disastrous) consequences as a result – including particularly, but not limited to, monopolies – I wonder whether it was the Articles of Confederation or the Constitution that failed.
              For an interesting old law review articles by one of the Conspirators, see
              https://scholarship.law.georgetown.edu/facpub/509/

          2. How about we let a resident of Wyoming have more influence in Wyoming, and a resident of California have more influence in California?

            What does that have to do with the EC?

            Why not just stop having the residents of California and Wyoming impose their views on each other?

            You mean dissolve the union into the separate states? The fact is that there are national issues to deal with – issues that affect individuals nationwide. You may think there are too many, but surely there are some.

            And having the view of a Wyoming resident be more important than that of a Californian is ridiculous.

        3. Residents of WY do have less influence than residents of NY or CA. When was the last time anyone cared about WY’s 3 electoral votes?

          The real “outsize” power is wielded by the swing states, like FL and OH. But of course you can’t demonize them because your candidates need them to win

          1. When was the last time anyone cared about NY or CA’s electoral votes? Why do we arbitrarily privilege FL and OH? At least NY and CA (and TX) have a cognizable reason to be important.

            But I’m actually playing devil’s advocate here – I continue to be agnostic about the EC – I don’t mind acknowledging that states have their individual character in the Senate and Presidency, but I also get how it’s kind of a weird kludgy protocol that doesn’t exactly counteract the populist parts of our government.

            1. When I ask myself if I’d rather have a moderate purple state, or extremists (from either side) choosing the president, I’ll go with the purples (even if they are choosing between two extremists at this point)

              1. It’d not be states, it’d be the people as a whole.

                But I kinda take your point – the populous as a whole are not without their passions. That’s why a pure democracy is a bad idea.

                We’ve had a pretty good balance of more status-quo elitism and more passionate, but legitimacy-granting consent of the governed populism. The EC’s purple state elitism is part of that mix.

                But what’s worked in the past doesn’t always work in the future…

            2. The real Kludge is the winner take all electoral vote, while it virtually insures there are no ties it effectively fails to count a lot of peoples votes, especially in closely divided states. As a result reliably blue or red states don’t get much attention. Perhaps a modest compromise would be to allocate electoral votes roughly in proportion to the popular vote of the state with the winner getting the two bonus votes. In 2016 California would have split 36/17. As as added bonus no constitutional amendment would be required.

              1. Or, do like Nebraska and Maine do, and have allocate the electoral votes by Congressional District and give the overall winner the last two votes. No Constitutional problem at all and no amendment necessary. Trump took 1 electoral vote from Maine in 2016. Obama took 1 electoral vote from Nebraska in 2008.

          2. I agree that the swing states have outsized power. Yet another flaw in the EC.

            But that doesn’t mean Wyoming doesn’t. Just because, at the moment, it is solidly Republican, so candidates don’t spend time there, doesn’t mean its votes in the EC don’t count.

    2. The winners were not the “losers”. The winners were the ones who won they 50 races they were running, and the losers were the ones running the wrong single race they were mistakenly running.

    3. And if you really do think the bigger populations should have the power they rightfully deserve, let’s carry that through and let everyone have the individual power they deserve, free from overbearing government control and abuse.

      But individual responsibility and accountability is a bridge too far for your like, isn’t it? You only believe in democracy so far as it suits you.

    4. Trump won 37 of the 51 Presidential elections in 2016. Why would you give the Presidency to the loser that only won 14?

      Also: “nowhere states”? Bigot much?

    5. . . . Should be done via popular vote . . .

      In the 2016 presidential election roughly 60% of eligible voters participated in the elections. Hillary and Trump basically split the votes, with a slight bias towards Hillary in the totals. 50~ish% of 60% is 30~ish%. 30~ish% of eligible voters selected our president.

      That is not a “populate vote”. That is not a “majority rule”. I’ll concede to direct democracy [a logical fallacy: appeal to popularity\ when choosing not to vote counts as a “no” and a candidate must get a majority of all votes.

    6. Removal of the EC won’t solve the problem of Trump-like candidates in general. If anything, a simple majority rule will make it slightly easier, not harder. 50.1% is a lowwwww bar for demagogues to leap.

      You are living the chimera of “my candidate lost, so let’s change the rules.”

      1. Removal of the EC won’t solve the problem of Trump-like candidates in general.

        True.

  4. The problem of elector corruption, on the other hand, could prove insurmountable; with a group that small, the price of buying the presidency would be relatively manageable and possibly uncontrollable.

    Well that’s easy to fix. Repeal the current congressional limit and apportion representatives closer to 1910 levels, when it was roughly 200,000 people to one representative (currently it’s about 700,000 people to one representative).

    This would obviously triple the size of congress, at least.

    And heck, we aren’t really limited by 1700s technology anymore. There’s no reason the House of Representatives needs to be in DC. So we could let it go up to a huge size and relocate it elsewhere (there’s a lot of space in western states that could play host to DC 2.0).

    While we’re at it, we can go to multi-seat districts and proportional voting for congress-critters.

    The end-result would be a huge ungainly congress that’s much harder to control through partisan politics, congress-critters that are less depdent or loyal to the party, third parties having a fair shot at getting in, and yeah, presidential electors that can reasonably try to meet everyone who might vote for them over a span of a few months.

    This “corruption” problem is only true if we keep congress small. A large, wild, ungainly body is much harder to corral.

    1. There’s no reason they have to meet in one place. Let them teleconference from the state capitols, say, and put all the data traffic into a very secure from erasure archive.

    2. The end-result would be a huge ungainly congress that’s much harder to control through partisan politics, congress-critters that are less depdent or loyal to the party,

      Wrong and wrong. Entirely, exactly, and astoundingly wrong.

      You cannot weaken parties by making legislators more numerous; by making individual legislators weaker and less important, you strengthen the party leadership relative to them. This has been demonstrated time and time again, across legislatures of all levels of power, throughout the world.

      And multi-member and proportional elections don’t weaken partisanship, they put it on steroids. Which has also been demonstrated time and time again.

      1. You want to weaken the parties, you need to weaken the government. The overwhelming power of government makes the outcomes of elections so critical that people have to form alliances to make sure they win, because the consequences of losing are so dire.

        Ultimately there’s no way for the outcome of an election to matter a lot, and people not treat politics as war. War is won by armies, held together by the fear of opposing armies, and that’s your parties.

  5. A simple answer to the problem is to let the faithless elector’s vote count, but make violation of the pledge a felony punishable by a prison sentence.

    1. An alternative simple answer is to throw out the 10th circuit’s “Faithless elector” decision on the grounds that it violates the “in such Manner as the Legislature thereof may direct” clause, when the Legislature directs that faithful electors be chosen.

      1. Their decision is based on the electors becoming federal employees / agents / officers / what-have-you once chosen.

      2. But nobody claimed their was any interference with the manner in which Mr. Baca was appointed. The suit concerned only post-appointment conduct. The Presidential power to appoint federal judges doesn’t extend to a power to remove them if they don’t vote the way he wants. The power to elect senators does not include a recall power if the voters are dissatisfied. What makes this any different?

      3. – “on the grounds that it violates the “in such Manner as the Legislature thereof may direct” clause”

        You should probably try reading the court’s decision…or at least the opinion piece you’re commenting on. The court’s decision in no way violates the state legislatures’ power to appoint electors as granted under that clause.

    2. No the simple answer is to dissolve 95% of the federal government and let the states govern themselves.

    3. You’re not exactly up to speed on what it means “to vote.”

      Are you willing to let the State mail you YOUR ballot with YOUR answers already filled out, and a certified letter informing you that these are your votes, and thank you for your time?

      An even simpler response: The Constitution clearly demonstrates that you’re terribly misinformed.

  6. Congress has the responsibility for counting the electoral votes. They provided a method for hearing challenges. What role to the Art. III courts play after Congress has done the counting and officially confirmed the result?

    1. The problem here is that each house Congress has the same role in determining its own election returns. And both houses are, per the constitution, also elected by electors. But it’s been well established that people denied the right to vote as they wish in Congressional elections can sue claiming they have a constitutional right to vote and it was denied them, and the courts will hear it. Why should electors for President be different?

      1. Well, it’s possible that I’m missing something because I can always be surprised by the details of election law – but can a court in a case involving federal elections actually reach a result which contradicts the ruling of the house concerned? Eg, it’s one thing to order a qualified House candidate put on the ballot before the election, but if the House then throws out all votes for that candidate, wouldn’t that constitute the final word?

        1. And while I know about Powell v. McCormack (sp?), I’m not so sure that case was actually rightly decided.

  7. Here’s an interesting edankenexperiment:

    States elect “free-agent” electors, but not when they do now. Instead, they select electors in January/February (early in the year) of the year. Even before parties select their candidates.

    Then those electors have the opportunity to do deep-dives into the eventually selected candidates. They can have one-on-one long-form interviews with candidates and do deep-dives into the backgrounds and policies espoused by each candidate (and not only for POTUS, but also for VPOTUS independently).

    This, to me, seems to be the “republican” concept, where “the people” select representatives to take the time to make an informed choice.

    Yes, it would certainly be a different process. I’m not even claiming that it would be better or worse, but it might be an interesting concept.

  8. The difficulty here is a general problem with taking something designed for one purpose and trying to fit it into something else. The problem is it may not really work for either purpose. It may sorta do, but have problems and be prone to break down. This is similar.

    The irony here is that the system we now have actually leaves the voters with less choice than the original system. Under the original system voters were expected to find out who the candidates for elector are and evaluate things like how likely they are to keep any promises they’ve made or how well they’re likely to exercise independent judgment, just as they do for other candidates.

    But under our current system, voters often aren’t even told who the candidates for elector are, and have no information with which to evaluate either their reliability or their discretion.

    Electors are chosen behind closed doors by party bosses.

    This makes it much corruption much MORE likely. A system where anonymous electors are chosen by party bosses behind closed doors and the public system is based on a charade of sham promises that don’t have to be kept is in some ways the worst of all worlds. Electors could break their promises for honorable reasons. But they could do so for dishonorable ones as well.

    At the very least, states should put electors’ names on the ballot and voters should have the right to be told be told who their votes are actually going for. And states should consider allowing independent electors to run for the office of elector only, per the original design, who can be chosen if the voters so wish.

  9. The election of 1872 points out the huge flaw in the electoral system. The Democratic (and liberal Republican) Party candidate Horace Greeley lost, but died of natural causes in between the election and the date in December designated in the Constitution for electors to meet in each state. This was the election where the Democratic Party was in such disarray they had no convention.

    While speed of communications was a major complication that would not exist today, there was no framework on how to handle this. Some electors voted for Greeley, knowing he was dead. . So the other Greeley electors voted for 4 different candidates. If Greeley had been the winner, the result would have pushed the decision to the House. Once the electors vote, there is no do-over if circumstances change.

    1. Actually, no.

      In 1872, President Ulysses Grant received 286 electoral votes and carried 31 of 31 states. That was than enough to be re-elected. Had Greeley lived, he would have received 66 electoral votes. The 1872 election was not going anywhere near the House.

      You are likely conflating this election with the election of 1876, when Rutherford B. Hayes defeated Samuel Tilden by an electoral vote of 185-184, after Tilden won the popular vote.

      1. Oops. 31 out of 37 states. My bad.

  10. “which has delivered unto us an individual manifestly unfit to occupy the office.”

    I’m no fan of Trump, but I’d expect a lot more tangible consequences from an “individual manifestly unfit to occupy the office.”. Instead, we are at a fairly stable, boring point in history. No wars, relatively good economy, etc. Obama’s presidency was similar, although with alot more drama in the middle east.

    1. Yep, rich white guys like you and me are doing okay, at lest for now.

      Doesn’t mean our country is doing fine, though.

      No wars is a telling oversight.

      1. Rich white guys like you and me did fine in 2008, too. In fact, you have to be a rich white guy to whine about an economy in full employment. Do you seriously have no idea what the difference is between a strong economy and a not-so-strong economy when you’re not a rich white guy?

        1. Is all you care about the delta for GDP?

          1. Do you not care if people are working for a living, and not being sent off to war?

            Things are, objectively going well in the country. If something like 95% of the media didn’t hate Trump with a passion, his reelection would be inevitable under circumstances this good. As it is, it’s a toss-up, and that’s a pretty impressive thing to say given all the forces arrayed against him.

            1. It’s not the media.
              In everything but the delta for GDP, Trump has been awful.

              And, of course, Presidents aren’t actually responsible for their own economy. At best they have a marginal effect years down the road.

      2. “rich white guys”

        Its all class and race with your side. And weird male self loathing.

        Unemployment is at 50 year lows and real wages have gone up. Black unemployment might still be higher than white but it is at historic lows. Stock market is doing fine. Inflation is low.

        Most everyone is doing fine, the out party and its media handmaidens have a vested influence in screaming that the sky is falling.

        1. It’s not me bringing race into it – the Trump Admin’s policies and rhetoric have been targeting cohort after cohort except for this one demographic group.

          Most everyone is doing fine, except for the citizens being picked up at the border, and the farmers Trump is screwing, and the poor whose programs he’s screwing with, and anyone living in Puerto Rico, and women who want an abortion, and transgendered people, and a bunch of people working for the USDA, and unions…

          So yeah, I’m doing fine at the moment. But when I look around, I see plenty groups of people not doing fine, and somehow I have a problem with that even though I’m doing fine.

          1. Who will cry for the bureaucrats at USDA?

            You know Kansas City is nice. They have baseball and electric lights and everything.

            Those groups except farmers are just Democrat interest groups. Since when does a liberal care about red neck farmers though?

            1. They’re people too – spitefully moving them all to Kansas at short notice is unnecessary and frankly cruel. That’s not what they signed up for.

              What’s the GOP interest group but white rich males these days?

              1. No amount of notice would make them happy. They would just try to stall until a change of administration.

                Most of the government should be relocated. Ag to the Midwest, maybe Iowa or Kansas City, Interior to Colorado, HUD to Detroit or Chicago, etc. No need to have it in one of the three most expensive cities in the country.

                “What’s the GOP interest group but white rich males these days?”

                Again with the “rich”. The GOP is solidly lower middle class and working class now.

                Look at this map of partisan leanings. Except for Texas and Florida, GOP states are not the wealthiest states. Lots of rich people in West Virginia?

                http://worldpopulationreview.com/states/most-republican-states/

              2. They might still complain given reasonable notice, but they’d have less legitimacy in doing so. It’s unneeded misery.

                The government isn’t siloed agencies who never meet with one another. Your idea is remarkably inefficient to anyone who has ever worked in government. Do you see any other countries with distributed governmental policy arms?

                I’m not using rich as upper class, I’m using it as not poor. But I take your point. Well-off white males, then. You know, the ones insulated enough they’re harder to screw around with via government action. (e.g. they can vote with their feet).

                Beyond that comfort aspect, I will concede and correct; the class mix, at broad strokes, is within normality in both parties. Maybe there’s some interesting work at the margins, but that’s for another thread.

                Nevertheless, your argument ‘why make it about race, gender and class’ the right’s demographics naturally make it about at least the first two.

                1. “I’m using it as not poor. ”

                  LOL. That means 300 million rich people. Hurray!!!!

          2. “Most everyone is doing fine…”

            Yup. People have jobs, houses, etc. Hell, even women who want abortions are doing fine. Women who want elective abortions on the last day of pregnancy are doing. Puerto Rico, that was a hurricane, dude. And the justice system has been screwing over randos since way before Trump. That got a big boost in 1994, when Hillary was in the White House with her super-predator bullshit, your boy Biden was in the Senate, and the Dems controlled Congress.

            1. By your definition, Cuba was a great place to live under Castro. Great economy, lots of jobs. Just don’t worry too much about your liberties and enjoy the prosperity and health care!

              The argument that Trump’s okay because the economy is doing well is myopic and misunderstands the duties of the President, as well as power of the Presidency over the economy.

              Will you say Trump was a bad President if we go into a recession?

              1. You… don’t understand the difference between the US today and Cuba under Castro…. Wow. Although Castro never made any Cuban government employees move to Kansas City, so I guess there’s that.

                “Will you say Trump was a bad President if we go into a recession?”

                I’ll say that Trump is a bad President right now. But the problem that wipes out the credibility of so many anti-Trump folks is the TDS, that is, the fact that so many people aren’t content to say that Trump is a bad president. They have to say things like, “an individual manifestly unfit to occupy the office.” To justify the that level of rhetoric, you have to show some abnormal set of problems. War, famine, pestilence, etc.

                1. TiP, I wasn’t endorsing Cuba, you were, by your ‘People have jobs, houses, etc.’ metric.

                  Yeah, I think Trump is specially bad. Because it’s not about the economy, the President’s duties are not to the economy; he can’t control that. It’s about everything else. And Trump is worse than any modern President at leading, at policy both foreign and domestic (in a time of relative tranquility [albeit with gathering threats]!), and the worst at administration. As spiteful as Nixon, as corrupt as Agnew. But with a party that’ll excuse and support him.

                  Worst in modernity. Bring over your Pierces, your Jacksons, your Van Burens, your Johnsons (Andrew)…we can talk then.

                  Call it TDS, but it’s not purely partisan – I wasn’t saying that about Bush, even though I was very much not a fan.

                  1. – “I wasn’t endorsing Cuba, you were, by your ‘People have jobs, houses, etc.’ metric.”

                    And now I’m back to wondering if you’re just a troll or are actually as stupid as you go out of your way to make yourself sound.

                    1. If it’s so clear to a smarty like you, lay out the logic distinguishing America from Cuba using the pinched metric for success TiP is using.

                    2. – “…using the pinched metric for success TiP is using.”

                      So now that you’ve acknowledged the false premise on which your comments were based perhaps you can figure it out yourself. Or perhaps not. The features of U.S. government and society that fundamentally differentiate it from communist and other totalitarian regimes like Cuba are already understood…at least by those of us who are engaging in honest discussion…and do not need to be explicitly enumerated in order to avoid implying that the U.S. is like them.

                    3. Wuz – do you think I’m trying to defend Cuba? Because yesterday I said: “TiP, I wasn’t endorsing Cuba, you were, by your ‘People have jobs, houses, etc.’ metric.”

                      That’s a pretty good clue I’m not trying to argue Cuba is the best.

                    4. Jesus tap-dancing Christ. Are you supposed to be on some meds that you’ve been skipping for the past few years?

                2. – “They have to say things like, “an individual manifestly unfit to occupy the office.””

                  You’re forgetting that he’s a white nationalist who is also “literally Hitler!”

          3. “It’s not me bringing race into it – the Trump Admin’s policies and rhetoric have been targeting cohort after cohort except for this one demographic group.”

            Except that they literally have not been. You have to engage in all sorts of mental gymnastics to claim that.

      3. When discussing electors, everyone seems to take the original words of the Constitution while ignoring subsequent amendments

        14th: €But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,15 and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
        States have to allow the people to vote for elector’s, they can no longer be simply appointed by the legislature.

        24th: 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.
        Again, citizens have the right to vote for electors.

        The states have so far established 2 ways to vote for electors- the Nebraska and Maine way, which I favor, and the winner takes all way. These two amendments throw a monkey wrench in the compact between the states. If The nationwide popular vote differs from a state vote, the people of that state have been denied the vote for THEIR electors. Also means a state really can’t select electors proportionally, because then the question arises: Who did you vote for? Maybe you wanted elector 25 on your slate, but proportionally your slate only got 24… All or none, or by congressional district as Maine and Nebraska do it and you’ve voted for an entire slate, or one plus the two statewide.

        And while we’re discussing the Constitution and electors, there are far too few electors and it’s clearly a Constitutional violation. Back at Amendment 14: 2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.< Representatives are not apportioned among the several states according to their respective numbers because of the artificial constraint of 435. At a minimum, each state should have (smallest state population)/(state population) representatives. The larger states attorneys general should file a writ of mandamus with the Supreme Court to force the House to fulfill it’s constitutional duties and increase it’s members to return the House to proportional representation for each state.

        1. If a state of is,student selected the electors itself, with no citizen voting involved at all, it wouldn’t be basing any denial of citizen voting rights on race, sex, or age. What would be the problem? These amendments impose minor limits on the way elector appointments can occur. But so long as legislatures don’t use elections limited to particular races, sexes, or ages, they can still pick electors any way they want, including relating the outcome of the vote to selecting particular electors any way they want. They could, for example, appoint the Democratic Party slate if the total number of popular votes cast is odd and the Republican slate if the total number is even. They have no obligation at all to relate the slate appointed to who the voters cast their votes for at all, let alone in any particular way. So there’s no problem picking the slate pledged to the candidate who wins the national vote, the state vote, the local vote, or whatever. As long as the slate is picked, whoever done, they can then vote for who ever they wish and don’t have to keep any pledges they made.

          1. If a state legislature selected the electors itself…

  11. Post refers to “this group of 538 people”. But let’s not forget that at the time of the Founders, the Electoral College wouldn’t have acted as a group at all. Under Article II, section 1, the electors meet in their separate states. At the time the Constitution was ratified, and indeed until the 1840s, there was no way for the electors in one state to negotiate with those in another. In Federalist 68, Hamilton speaks approvingly of this: the “detached situation” of the electors would be a hindrance to cabal, intrigue, and corruption.

    I suspect that if the system operated in the way the Founders envisioned it, with the people of each state choosing electors based not on their blind devotion to a political party but out of a general trust in their wisdom and principles, and with the electors in each state unaware of how every other state’s electors were planning to vote, then we’d see a lot fewer EC majorities, and a lot more elections going into the House of Representatives.

    1. “and a lot more elections going into the House of Representatives.”

      Which, if I recall my history correctly, is what was originally intended. The EC was meant to reach a majority only in cases of extraordinary candidates of the caliber of Washington, but they expected most elections to go to the House for resolution.

      1. Yeah, it was kinda set up to be an elitist horrorshow. I don’t know many who are unhappy that it wasn’t implemented as designed.

  12. “which has delivered unto us an individual manifestly unfit to occupy the office.”

    Dude, if you have any citable proof he is not 35 years old or older, or that he is not a natural US citizen, or has not resided in the USA for 14 years, post the link.
    Otherwise, he is as fit as anyone. You going to argue with the constitution?

    1. Dude, if you bothered to expand your understanding of the English language, you wouldn’t look like such a twit right now.

  13. Post’s description of the process seems quite deficient, if the process was as he describes we’d get a lot more faithless electors:
    “What happened was that each of the States—who have the responsibility for appointing presidential electors (see note above)—requires presidential electors to pledge, prior to their appointment, to cast their ballots precisely as they are told to do by the State government…”. A process where the State was telling the electors how to vote with the electors not having without a process for insuring the electors would have a strong preference to vote that way would be a disaster. The party picks a slate of electors that have already pledged to vote for that party’s candidate. So electors are chosen not by their supposed obedience to follow the state’s instructions but their loyalty and dedication to the party’s presidential candidate. That is why the system has worked as.well as it has to follow the legislature’s intent to reflect the popular vote of their respective states.

    Where the system would probably collapse would be under a ranked choice voting, or a fractured party system with more than 3 or 4 parties with a reasonable chance to win, especially if a small group of electors could by changing their vote keep a hung election out of the house.

    1. Kazinski: I agree with what you’ve written – sort of. It’s true that the process involves the political parties, each of which gives the Sec. of State a “slate” of electors who “have already pledged to vote for that party’s candidate.” As I think I made clear in the O.P., that’s how Baca got on the list of possible electors. But the pledge to the Democratic Party is a transaction between private parties in which the State plays no part. Baca’s initial pledge to the Party gets him on the list – but he doesn’t actually get appointed as an elector until he takes a second oath, this time to the State of Colorado, promising to vote for the candidate who, by the rules of Colorado, is entitled to his electoral vote (Clinton in this case).

  14. For electors to be actual deciders, _without_ voters ever vetting them for that role, was certainly not ” the Framers’ original conception”. Baca’s notion of the electoral college has nothing to do with Hamilton’s. Nothing in how Baca was chosen makes him “most likely to possess the information and discernment requisite to” wisely picking presidents. He’s free to campaign to have his state appoint him as an actual decider, but without having done that, he has no mandate to be one.

    1. I don’t think that’s anywhere near “certain”. If the framers’ original intent was for the electors to simply be rubber stamps for the legislature then it makes absolutely zero sense to create a system involving multiple electors for each state to begin with. Just appoint one to be the deliverer of the X number of votes (for the candidates of the legislature’s choosing) that a state is allotted based on its congressional representation and be done with it.

      1. I didn’t say the original intent was “for the electors to simply be rubber stamps”; I said it was for them to be deciders _and_ individually vetted for that role by voters or state legislators. Absent such vetting (which today is not done at all), you can’t cite “original intent” in arguing for them to be deciders.

        1. – “_and_ individually vetted for that role by voters or state legislators”

          “Each State shall appoint, in such Manner as the Legislature thereof may direct” makes it pretty clear that there was no intention of them being vetted directly by voters. There’s also no requirement, nor even a hint of an expectation that they be vetted in any way by the legislators who appoint them, either directly or indirectly. So from whence comes your certainty that the framers intended any specific basic requirements for the manner in which legislatures appoint electors?

          1. From Federalist 68 saying electors should be “selected by their fellow-citizens from the general mass” as “men most capable of analyzing the qualities adapted to the station” of president and “most likely to possess the information and discernment requisite to such complicated investigation”. And from the 14th Amendment’s reference to “the right to vote at any election for the choice of electors for President and Vice President”.

            1. – “From Federalist 68 saying electors should be “selected by their fellow-citizens from the general mass””

              Hamilton’s vague prose on the matter is not an indication that electors were intended to be selected via a direct popular vote. Indeed, such a supposed intention is directly contradicted by the “in such Manner as the Legislature thereof may direct” part of Article II, Section 1.

              – “as “men most capable of analyzing the qualities adapted to the station” of president”

              I missed the part of Federalist 68 where Hamilton outlines any method intended for ensuring those qualities. Also, are you under the impression that electors are chosen via a random lottery or something?

              – “And from the 14th Amendment’s reference to “the right to vote at any election for the choice of electors for President and Vice President”.”

              Uhm…that isn’t a reference to voters directly selecting and/or vetting individual electors. It refers to voting for a particular candidate’s slate of (already chosen) electors. And the absurdity of citing a clause from an amendment that was written and ratified decades after all of the founders were dead and claiming that it is somehow an indication of their intentions should be quite apparent.

    2. The fault here lies solely with the state legislatures, who set up the present system whereby voters elect electors without being able to vet them. State laws often forbid even putting the names of the candidates for elector on the ballot. The result is a system that falsely represents to voters that they have complete power and choice over who gets selected as president, while actually depriving them even of the limited power and choice they could have under the 12th Amendment if state legislatures permitted them to have that choice. If voters are to have more say in who the electors are, that system needs to be changed.

    3. I agree as to Baca … but you can’t have a Hamiltonian system without first establishing that electors can disobey the orders they receive from the State and decide on their own. If that’s the governing rule, then (but only then) would people feel the need to vett them for the role.

  15. What about when the one-issue X Party, starts running a slate of electors pledged to vote for whichever candidate supports issue X, in a close a election?

    1. What about it?

      It’s a bit unorthodox, but I don’t see any logical problems with that. People voting for X Party would know what they’re getting into.

  16. I have a feeling you would enjoy the short story “Franchise” by Isaac Asimov.

  17. “except for Nebraska and Maine, which have proportional schemes for allocating their electoral votes”

    Actually, my understanding of Main’s system is that it is technically not proportional. The two electors it gets for it’s two Senators are selected by the state wide vote. The remaining electors are selected one at a time by the vote in each House district.

    The result may look proportional at first glance, but it’s not.

    1. Give gerrymandering of congressional districts and demographics typically require Democrats to win the nationwide popular vote by at least 5 percentage points in order to win the House, it’s not even close to proportional.

      1. IIRC, Main has only 2 House seats So there isn’t that much gerrymandering going on. As with only two seats, each district get’s half the state population, it pretty much ends up as 1) Main’s two major cities, 2) the rest of the state.

  18. Nonlawyer Q: Why can’t a state which is truly intent on elector faithfulness just require electors to sign a contract upfront (one making faithlessness extremely painful) without running afoul of this 10th Circuit (or earlier SC) decisions?

    1. As I read the Tenth Circuit decision, Baca had a constitutional right to be faithless and punishing someone for exercising a constitutional right is unconstitutional. On the other hand, Chiafalo v. Inslee, 224 F. Supp. 3d 1140 (W.D. Wash. 2016) held that civil penalties are permitted. Thus, it is not settled law.

      1. Followup Question:

        Could the party (Democrat party in this case) require such a contract with large damages specified in the contract for violation, in exchange for putting the elector on their “slate”?

        No 1st Amendment issue, as the Democrat party is not a state actor, but a private party.

        1. An interesting idea – but I wonder whether such a contract would be enforceable. Imagine a similar contract with a candidate for the House of Representatives – he/she promises to vote for Trump’s next nominee to the Supreme Court, with a $1 million liquidated damages provision if he/she breaches the promise. I have a feeling a court would hold this contract void for reasons of “public policy” (the policy being that the Constitution requires that Representatives are free to exercise their judgment and discretion), and that the same would hold for electors.

          1. Or, echoing Shelley v. Kraemer in another context, that judicial enforcement of the agreement would be an unconstitutional exercise of state power.

    2. In Ray v. Blair, cited in the main article, the Supreme Court held that it was constitutional for a state to extract a pledge from electors as part of its process for appointing them. I don’t think there is any reason that pledge couldn’t take the form of a contract, but the remaining question that Ray avoided was whether there are constitutional limits on the state’s ability to enforce that pledge. If there are, they would apply whatever form it took.

    3. I don’t think the case is whether or not the state could punish the dude after the fact, it’s whether they could pull and replace him to change the Electoral College vote.

  19. I recommend Jeff Greenfield’s <a href="https://www.amazon.com/exec/obidos/ASIN/0452277051/reasonfoundation-20/ People's Choice for a scenario where an election could be decided by a more independent Electoral College.

  20. Ouch, Dr. Post. The phrase “comprised of” should have been either “comprising” or “composed of”. Sorry, one of my bugbears.

  21. Increasing the membership of the House of Representatives would reduce substantially the problems associated with the Electoral College.

    Whether the House should be expanded before (or, instead, after) the Supreme Court is enlarged is a point regarding which reasonable, decent Americans may disagree.

  22. The change happened long before any state tried to constrain electors’ actions.

    It happened as soon as political parties began naming slates of electors pledged to vote for the parties’ nationally designated candidates. That happened in 1796. Since that time, a vote for an elector has been a proxy for a vote for a candidate, and the idea of electors as agents designated to choose for the voters who elect them has been a nullity.

    Since 1796, all slated electors have pledged in advance to vote for a designated candidate, with, AFAIK, the sole exception of “uncommitted electors” slated by Dixiecrats in Mississippi and Alabama in 1960. (The Alabama electors were part of a fusion slate with Kennedy electors.)

    In 1860, things were still ambiguous, though. In Illinois, Lincoln turned in a ballot with his own name cut off, as he considered it improper to vote for himself. So the ballot only listed the candidates. In New Jersey, a few thousand Democrats refused to vote for the Bell electors on the Bell-Douglas fusion ticket, and Lincoln won 4 of 7 electors. So the individual electors were on the ballot there.

  23. I’d solve the question as follows:

    The states can require pledges from their electors, but can’t enforce those pledges, since the electors are legally free to vote for whoever they want (except unqualified persons, or two people from their own state).

    When the states certify their electoral vote count, Congress counts the votes, and under the Electoral Count Act, resolves disputes over whether the states counted the votes correctly. In practice, that means the state-certified votes are counted unless both House and Senate vote to overrule the state’s count.

    Once Congress has completed its count, the winner of the electoral votes, as determined by Congress, becomes President.*

    Then, I would suggest, the courts wouldn’t be allowed to entertain any challenge to the count.

    Legally, it would be nice if Congress counts the votes even of “rogue” electors. In practice, I don’t see that happening unless the vote of a rogue elector would benefit a party controlling both House and Senate.

    *Unless nobody has a majority, in which case the House sorts it out.

    1. I think the position the court’s have no role at all is unlikely to succeed.

      In a dispute over an individual elector, courts might stay out. But at the other extreme, if Congress selected someone no elector had voted for, I would suspect the court’s would step in and say no, Congress’ freedom of action isn’t absolute and it can’t do that.

      There’s obviously a middle ground somewhere and I don’t know what it is. But if it would make a difference to the election, I suspect the courts would find a way to rule on it. After all, the Constitution gives Congress plenary authority over legislation generally, and doesn’t say anything about judicial review at all.

  24. As for the Founders’ design, that design changed with the 12th Amendment, which *de facto* gave the electors the rubber-stamp role they have to this day.

    Without closing the door to a possible rogue elector, the 12th Amendment *in practice* accommodated the electoral process to the two-party system we have grown to know and love.

    The original, Rube-Goldbergesque electoral college system gave electors two votes without any method of specifying who would be President and who would be Vice-President, which was fine if electors were independent actors designating people on a nonpartisan basis, but not so much fun if the parties were trying to get their Presidential and Vice-Presidential candidates chosen without mess or confusion (as the 1800 election showed).

    So by having electors spell out specifically their Presidential and vice-Presidential choices, this opened the way for most elections being decisive in favor of one party or the other. And the rogue electors haven’t gummed up the works so far – nor will they, as I suggest above, unless both houses of Congress choose to let it happen.

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