A federal appeals court recently ruled, for the first time, that presidential electors must be free to vote their conscience in the Electoral College. The decision, written by Obama appointee Carolyn McHugh, was a masterpiece of historical analysis and originalist reasoning.
If and when the issue gets to the Supreme Court, the justices should likewise look to text and history to affirm the rights of electors to vote for whomever they wish.
But the debate over electors should not end there. Instead, that decision would only be the beginning of the discussion over the role of the Electoral College in our system. In that discussion, good originalists should also realize that sometimes the Framers’ institutions become outdated and need a little updating. And that’s certainly true of the way we elect the president.
Start with the appellate court’s decision, which I am proud to have argued. The case arose from the 2016 vote of Colorado’s electors. Hillary Clinton won Colorado in 2016, but my client, Micheal Baca, voted for John Kasich instead of Hillary Clinton, in a failed attempt to encourage other such votes by Republican electors and deny President Trump a majority in the Electoral College. When the state’s electoral votes were tallied, though, Colorado’s Secretary of State threw out Baca’s vote and replaced him with another elector, who then duly cast a vote for Clinton.
The appellate court ruled that the Secretary of State acted unconstitutionally by depriving Baca of his right to vote. In reaching this conclusion, it first closely examined the constitutional text. The Constitution uses the words “vote,” “ballot,” and “elector” in the provisions creating presidential electors and outlining their duties. But what do those words mean?
To find out, Judge McHugh looked to how those words were “understood at the time of the Constitution’s ratification,” which is a classic originalist move. Her quest took her to five different dictionaries published between 1760 and 1806. Every definition implied “the right to make a choice or voice an individual opinion.” She buttressed this conclusion by looking to other useful sources, like the Federalist Papers, and she even dug deeply into early historical practice and found that there were electors exercising independent choice as early as 1796, which saw the first election between candidates representing nascent political parties. Her conclusion: despite a longstanding practice of electors pledged to vote for particular candidates, the Constitution ultimately gives electors the discretion to follow through on that pledge or to abandon it in extraordinary circumstances.
The court got the answer right as a matter of what the Constitution actually says. But originalists should not leave things there, because the court’s decision starkly reveals just how ill-conceived the originalist Electoral College was. The response to this decision should be a real, bipartisan movement for structural change in the way we elect the president.
Indeed, the good originalist should recognize that there were deep problems with the Electoral College’s design from its earliest days. After Washington left office and political parties began to emerge, the system quickly devolved into chaos: the 1796 election saw the election of a president (Adams) and a vice president (Jefferson) who were enemies personally and politically. The 1800 election resulted in an Electoral College tie between supposed running mates Jefferson and Burr that required 36 ballots in the House to resolve. Three years later, America adopted the Twelfth Amendment, which permitted electors to vote separately for President and Vice President, but it did not change any of the deep problems with the structure of the Electoral College.
Our litigation highlights how badly our system needs a fix. The Electoral College is a poor fit for our modern era because it was designed at a time when the framers thought there could be a consensus president, not one that results from a contest between political parties. And the framers created it before we had a national media that lets everyday voters cast informed votes about who should be president. Thus, unlike, say, the First Amendment, whose broad prohibition against restrictions on freedom of speech and the press can echo across generations, the framers’ unusual creation is stale and out of date.
Happily, there are ways to fix it. We can amend the Constitution to abolish the Electoral College, but amendments are really hard to pass — too hard, according to that greatest of originalists, Antonin Scalia. So we can also keep the Electoral College’s structure but make it work much better than it does than it does now, with most states using the dismal winner-take-all system to award electors. For instance, states could award electors in proportion to the vote in the state, or states could award all of their electors to the national popular vote, or they could use ranked-choice voting to ensure that whatever electors are appointed have true majority support in the state. None of these would abolish the Electoral College, but all would at least bring it into the modern era.
So here’s a modest proposal. My colleagues and I will take our elector case to the Supreme Court and continue to encourage the justices to interpret the role of electors as it was originally understood. But if and when the Supreme Court agrees with us and illuminates the inner workings of the Electoral College, originalists should return the favor and be willing to admit that our system could also use a little updating, so that it better reflects the nature of our current political system and our modern conception of democracy.
Deal?
Jason Harrow is director and chief counsel of EqualCitizens.us
