A response to Professor Kerr

Orin Kerr is uncertain that old and new can mix. As he writes in response to my Washington Post op-ed:

It’s hard to have electors follow an ancient principle that gives them independent judgment and yet simultaneously follow a newer principle that takes their judgment away. The two ideas don’t readily mix.

But “mixing” isn’t the right metaphor here. The better word is “informing.”

As I argued, and as Orin accepts (“It’s true, at least as I understand it”), “the original design of the electoral college was for electors to exercise their independent judgment.” But “independent” in a very specific sense. Electors are not free to do whatever the hell they like. They’re free—like an “independent judge” is free—to exercise judgment according to, as Hamilton put it, the “reasons and inducements which were proper to govern their choice.”

Those proper “reasons and inducements,” however, are not Hamilton’s, or Madison’s, or at least not theirs alone. Instead, they are informed by our modern understanding of the values that are fundamental to our constitutional tradition. The Framers didn’t have an Equal Protection Clause. We do. They didn’t have an established and fundamental principle of “one person, one vote.” We do. They didn’t universally commit to a popular vote for President. We have. These fact about us inform the proper “reasons and inducements” that an elector should weigh. They provide the baseline against which an elector should make her choice.

My argument is that an elector should recognize just how fundamental the popular vote is to our understanding of the modern presidency. And more precisely, how important it now is within our constitutional tradition that we weigh the votes of citizens equally.

That recognition should in turn lead an elector to avoid casting her vote in away that defeats a popular election. At least if she can.

For no doubt, there are limits to what any elector can do. But the limits are not as Orin puts it. He writes, “they would be deferring to the popular vote in other states that didn’t even vote for them as electors.” That’s not true, because the problem here, at least as I described it, is caused by the “winner take all” rule that purports to constrain how electors can cast their vote.

For example, Trump won Michigan by 10,000 votes—out of more than 4.5 million votes cast. But “winner take all” says Clinton gets none of the 16 electors from Michigan. An elector from Michigan need look no further than Michigan to recognize that some are not represented in the votes of Michigan electors — and then do something about it, by ignoring winner take all, and voting to represent those whose votes wouldn’t be counted.

That is the question that an elector should ask: which value is more fundamental—the principle of one person, one vote, or the strategic effort of states to inflate their influence through the device of winner take all. In my view, that is not a hard question—even for us, as divided we are.

All this, Orin insists, however, should be “announced beforehand so the candidates can try to win under the understood rules.”

Of course that’s right. But Orin agreed the electors exercise judgment. And the principle of one person, one vote was not announced in an op-ed last week. I believe we should apply the rules that should have been clear on January 1, 2016. Those rules include the idea that my vote should not count different merely because of where I live. And those rules would plainly justify an elector reasoning like this:

It happens rarely, but it sometimes happens that the results produced by “winner take all” conflicts with “one person, one vote.” Given that conflict, I need to decide, which principle is more fundamental. They’re both important, no doubt. But one is more important: the President is president of all of us; all of us should have an equal role in selecting him—or her.

I get that people would be angry if 37 electors did what I believe is the right thing to do. I’ve seen that anger—and the threats of violence they induce—in my inbox.

But if there are sides in this fight, then one side needs to stand back and recognize something truly bizarre about our so called “democracy”: there are more who voted Democratic than Republican in Senate races, but our Senate is Republican. The numbers for 2016 are not final, but if they follow the pattern of 2014, then there will be more who have voted Democratic than Republican in the House, but the House is Republican. And the numbers are perfectly clear that more voted Democratic than Republican for the President. But according to Orin, that branch too should go to the minority.

At some point we need to ask: How can we have a democracy, if the loser always wins? No doubt the Constitution creates the gap in the Senate. Without a pretty fundamental amendment, that anti-democratic result is not going to change. But the Constitution didn’t gerrymander the House of Representatives. Politicians did. And the Constitution does not mandate “winner take all” in the Electoral College.

We could make America a more perfect democracy. And by respecting the results that would count citizens equally, the electoral college could take an important first step.