« Is the Oath Argument for Originalism Circular?
Chris Green
| Main | Faithless Electors Today [Update: Prakash Agrees]
Michael Ramsey »

05/12/2020

David Schwartz on Faithless Electors
Michael Ramsey

At Balkinization, David Schwartz, guest-blogging: Presidential Elections in the House? From the introduction: 

Next week, in Colorado Dept. of State v. Baca, the Court will decide whether to invalidate state laws binding presidential electors. The “faithless electors” won their case in the Tenth Circuit based on an originalist argument. Since there is no obvious partisan advantage to either side of the case—both the Democratic and Republican parties have filed briefs opposing the faithless electors claim—the Court’s conservatives might relish the opportunity to showcase their “principled” originalism and hold that presidential electors have a constitutional right to vote for whomever they choose.
 
The faithless electors’ case focuses on the meaning of Article II, section 1, clause 2: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors…” The faithless electors argue in essence that “electors” means persons with full voting discretion so that the “manner” of appointment cannot include instructions on how to vote—for example, binding the electors to vote for the state’s popular vote winner, or, as the National Popular Vote Interstate Compact movement would have it, for the national popular vote winner.
 
In this post, I’ll first discuss the pragmatic side of the faithless electors case, and then the constitutional history. The best reading of the text, structure, and history of the Presidential Electors’ clauses, I believe, is that the majority of the Framers probably didn’t care whether electors were bound by state law or not, because they assumed that contested elections would usually end up in the House of Representatives either way.
 
And from the historical discussion:
 
Given that the plain evolutionary trend in two centuries of presidential elections has been toward pledged or even bound electors, the argument that electors should vote their free and conscientious choices requires a reversion back to some “original meaning.” The originalist argument for faithless electors has both a linguistic and “structural” component.
 
The linguistic argument maintains that “elector” means someone free to vote his or her choice, as with “electors” for the House of Representatives (i.e., ordinary citizen-voters). An excellent rebuttal to that argument is found in John Vlahoplus’s essay demonstrating the indeterminacy of that language. Suffice to say here that the two conflicting interpretations are found in The Federalist essays themselves. Compare The Federalist No. 68 (Hamilton) (presidential electors would be those “most likely to possess the information and discernment requisite” to the “complicated” task of choosing the president) with The Federalist No. 39 (Madison) (asserting that the president would be elected “by the States in their political characters”).
 
As is often the case with originalist arguments in the era of “original public meaning” originalism, Framers’ intentions are smuggled into the presidential electors analysis under the rubric of “structural” arguments. [Professor Lawrence] Lessig’s lead brief for the faithless electors asserts that “The electoral college…. was crafted initially because the Framers did not want an executive dependent directly upon Congress nor upon the state governments.” (Consolidated Opening Brief for Presidential Electors, at 18.)
 
“Crafted” is hardly the right word for the patched-together compromise reached at the eleventh hour of the Philadelphia Convention—a compromise designed to accommodate three divergent views on presidential selection rather than to work well. But as long as we’re asking what “the Framers [did and] did not want,” let’s look at the odd drafting history of the Presidential Selection clauses and at the final approved language. ...