Web Hosting



The workings of the Electoral College — our hopelessly arcane and antidemocratic way of picking the president — have come before the Supreme Court only a handful of times since the founding.It happened again on Wednesday, as the justices considered whether states may punish or replace so-called faithless electors — members of the Electoral College who decide to vote for someone other than their party’s nominee. This is a rare occurrence — a few dozen times out of more than 23,000 electoral votes cast since the founding — but in 2016 ten electors tried to do it, more than in any one election in the nation’s history.Two of the ten, Micheal Baca of Colorado and Bret Chiafalo of Washington, were Democratic electors who believed Donald Trump was singularly unfit to be president. They figured if they could convince enough Republican electors to join with them and switch their votes to a more moderate Republican candidate, they could keep Mr. Trump out of the White House. So they cast their votes for John Kasich and Colin Powell, respectively.It didn’t work; only two Republicans went along with the plan. Mr. Baca and Mr. Chiafalo were punished for breaking state laws that required them to cast their ballots, as they had pledged to do, for the winner of the statewide popular vote (Hillary Clinton, in both cases). Mr. Baca was replaced by another elector who voted for Ms. Clinton, and was investigated for felony perjury, although he wasn’t charged. Mr. Chiafalo’s vote was counted, but he was fined $1,000.They sued their states, arguing that the states had no right to punish or replace them for voting as they chose. After all, they pointed out, some of the Constitution’s framers had intended for electors to do this. In the Federalist No. 68, Alexander Hamilton said electors would be men who “would possess the information and discernment requisite to such complicated investigations.” (Mr. Baca and Mr. Chiafalo dubbed themselves Hamilton Electors.)Mr. Baca won in federal court, but Mr. Chiafalo lost in state court. So the Supreme Court took the case, which it is likely to decide by summer. On Wednesday, the states’ lawyers argued that states have near-total authority over their electors. Lawyers for Mr. Baca and Mr. Chiafalo agreed that states may choose electors, but that’s it. “Once the voting starts, the state disappears,” said Larry Lessig, a Harvard law professor representing Mr. Chiafalo. If the Court rules in favor of Mr. Baca and Mr. Chiafalo, it will invalidate laws in thirty-two states that require electors to vote for the candidate they’ve pledged to.But after more than two hours of oral argument on Wednesday, the justices appeared unlikely to go that route. For starters, they worried about the “chaos” that might ensue if electors were suddenly free to vote as they pleased — or were bribed or blackmailed into voting as someone else pleased.The justices also took note of the fact that states have been binding their electors for most of American history. Today it would be hard to find a soul, regardless of political preference, who truly wants the president to be chosen by 538 random people they’ve never heard of. And that’s exactly who electors are — average citizens chosen by state parties for no reason other than their loyalty to the team.Justice Brett Kavanaugh pressed this point with Mr. Lessig, who was arguing for electors’ right to vote however they wanted. “Your position would in essence potentially disenfranchise voters in the state,” Mr. Kavanaugh said.That’s right, of course, as Mr. Baca admitted when I spoke to him for my book about the Electoral College. He understood why voters were angry with him. “Doing what I did, I feel that if it wasn’t me, I would feel uneasy. I’m not someone with the requisite knowledge to make choices of this magnitude for other people.”The concept of “faithlessness” itself begs the question. To whom are electors supposed to be faithful? The answer anyone would give today is, to the people in their state. They certainly aren’t supposed to be thinking for themselves.Alexander Hamilton himself agreed with this, notwithstanding his famous words to the contrary. In January 1789, less than a year after writing Federalist No. 68, Hamilton sent a letter to James Wilson, another founder, alerting him “with a degree of anxiety” to a central flaw in the presidential-selection system: anti-Federalist electors could game their votes, he had realized, to thwart George Washington from becoming president. “What in this situation is wise?” he asked Wilson. “I conclude it would be prudent to throw away a few votes, say 7 or 8” in safe Federalist states, to ensure Washington’s election. In other words, Hamilton was trying to manipulate the electors in exactly the way he had just claimed the system was designed to prevent. (In this way, Mr. Baca and Mr. Chiafalo were indeed “Hamilton Electors.”)If electors are not supposed to use their “information and discernment” when they cast their ballots, what other rationale for the Electoral College remains?The framers would have been hard-pressed to articulate one. The system they adopted in Philadelphia in 1787 was thrown together in the final days of the convention. It was born not of high principles, but of a desire to wrap up after a long and hot summer, and to get the Constitution signed and sent out to the states for ratification. Years later, James Madison wrote that the decision of how to elect a president “was not exempt from a degree of the hurrying influence produced by fatigue and impatience in all such bodies.”The framers may have been rushed, but we’re not. After more than two centuries of living with their jury-rigged electoral contraption, it’s clear that it does not reflect the expectations of citizens living in a modern republic — where all votes are supposed to count equally and the winner is supposed to be the person who gets the most. Another term for that is a national popular vote. We should try it sometime.The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.



Source link