Continuing the conversation with Orin: on how traditions happen

Orin Kerr’s reply to my reply to his critique of my Washington Post op-ed nicely (in both the sense of decently, and helpfully) frames what is, in my view, the critical question for how we understand the institution of the Electoral College. Indeed, it frames the question of how we understand the Constitution generally.

We both start — unlike others — with the view that at the framing, the electors were meant to exercise judgment. Electors were not to be “the deciders” only. They were also meant to be “the deliberators.”

We both agree that time works changes in the nature and reach of the Constitution. The question is not just what Hamilton would say. It is also what the sum of the many Hamiltons since the founding would say — or more precisely, what the tradition or “gloss,” as Frankfurter would put it.

And finally, we both agree with the current and conventional understanding of how the electoral college is supposed to work: as explained by every commentator reporting the news on election night, the electoral votes from a state are allocated to the winner of the state’s popular vote. In all states except Maine and Nebraska, that winner gets all the state’s electoral votes (“winner take all”).

What we disagree about is the scope of any freedom that might be left to the framers’ “deliberators and deciders” — aka, the electors.

To isolate that disagreement, however, we should divide the question into two parts — what is the scope of the electors’ legal freedom, and what is the scope of the electors’ moral, or ethical, freedom?

As a legal matter, I just don’t see the argument for the view that the electors can, constitutionally, be legally constrained in the exercise of their judgment.

The only Supreme Court case to get close to the issue is Ray v. Blair. In that case, every justice deciding the case took it for granted that a law purporting to restrict the legal freedom on an elector to vote his conscience would be unconstitutional. Justice Jackson, in dissent, summarized the understanding originally:

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.

Neither the majority or dissent pointed to any reason to believe that original legal freedom had changed.

The only difference between the majority (Vinson, Minton, Clark, Reed, and Burton) and the dissent (Jackson and Douglas) was whether a law that required a candidate to pledge support for the party nominee was also unconstitutional. The dissent said it was—thus affirming the idea that the state can’t even impose just a moral restriction on an elector’s freedom to vote his conscience. But the Court said it was not. On the Court’s view, a state can require an elector to pledge to vote for a party’s candidate, even if it would be unconstitutional to enforce that pledge later.

It’s not clear from Orin’s writing whether he agrees that Blair is good law or not. I certainly have not seen the argument by him or any one else to show why it is not. Ordinarily, we law professors say the law is the law—until the Supreme Court changes it. No doubt the Court could change this law. But so far, it has not.

But whether state law can constitutionally restrict an elector or not, it is a wholly separate question whether there is a moral justification for an elector to vote contrary to how s/he is morally pledged.

Here my view is actually quite conventional. Though I believe with Tribe that legally “electors are free to vote their conscience,” morally, I believe that “conscience” should be quite significantly constrained. Morally, I believe an elector should vote as he or she is pledged, unless there is an overwhelming constitutional reason to vote differently.

This is my view of the moral obligation, because I agree with the sentiment of many that our tradition has effectively come to constrain the scope of the judgment that electors should exercise. Michael Klarman writes, criticizing my proposal:

Democracy requires that both sides play by a common set of rules, many of which are unwritten. And one of those rules in our society is that we have a popular vote, within each state, which determines how that state’s electoral votes are cast. Democrats shouldn’t abandon that rule just because they lost.

Yes, we have “rules.” Those rules “determine how [a] state’s electoral votes are cast.” It is based on those rules that campaigns are built. And those rules themselves are based on a principle of equality: they say, implicitly at least, that the electors should not presume themselves, or their judgment, to be any better than the public’s. These rules thus say how the vote of an elector should be cast—unless there is a sufficiently strong moral justification for deviating from those “rules.”

I take it one such justification would be if the constitutional qualifications for a candidate were not met. If it were determined that a candidate was not at least 35, or “natural born,” or 14 years a resident of the United States, then an elector would be free, morally, to vote against that candidate—even if the “rules” say otherwise. At a minimum, in other words, morally, an elector should be free to vote to affirm constitutional obligations.

Likewise, and possibly, if a candidate were clearly seen to be unwilling to conform to the ethical obligations of the Constitution—specifically, the Emoluments Clause. Richard Painter, the former Ethics Czar for George W. Bush, believes Trump’s foreign and domestic holdings would force him to violate the Emoluments Clause. If an elector believed Trump was unwilling to comply with that obligation, s/he may well have a moral reason to refuse to vote for Trump.

But I don’t see the argument — against the background of our democratic tradition — that would justify an elector in voting against a candidate just because she doesn’t like him. Whether the Framers would have presumed that freedom or not, the “unwritten rules” produced by our tradition should tell an elector, clearly, that your own personal preference is not a moral reason to vote against the candidate to which you are pledged. If you’re a Clinton elector, but you believe Sanders or Trump would be a better President, too bad. That is not within the scope of your moral right to deviate. You may again, legally, be free to defect. But your defection — if personal preference were its only justification — would not be moral.

I don’t read Orin to disagree with either of these two claims either. Our only essential disagreement, as I see it, is whether “one person, one vote” is a sufficiently strong constitutional, and hence, moral justification for an elector to rely upon to deviate from how she is pledged.

With respect, I believe Professor Kerr has under-appreciated the significance of the “one person, one vote” principle. For of course, his argument (that inequality is built into the original design) would have been available at every stage of the “one person, one vote” revolution — and indeed, it was, and it was so deployed. But at every stage, where there were state rules that rendered the votes of some less valuable than the votes of others, those state rules had to fall—even if the resulting federal scheme was not perfectly equal.

So, for example, one person, one vote required all congressional districts to be equally populous. But that left a federal legislature with one house (the Senate) in which votes were not equally weighted. That compromise on the principle of equality, however, did not justify abandoning that principle of equality generally. The Court did as much as it could, leaving the basic federal structure in place.

That’s precisely what I believe the Court would do if it were presented with a “one person, one vote” challenge to state “winner take all” rules for the electoral college. Yes, there is some inequality baked into the electoral college itself. But winner take all exacerbates that inequality. If winner take all were abolished, the probability that the winner in the college deviated from the winner in the popular vote would fall( — I think substantially, but I’m not certain of that, and would be eager to see models that would test it). Certainly, the systemic discounting of some voters relative to others would end.

The Court has not addressed this question. Yet. Delaware asked it to. Fifty years ago, the Court declined the request. So the question for an elector is whether he or she—morally—could appeal to this principle, as a justification for voting against how he or she is pledged.

Because I view this principle as fundamental within our tradition, my answer is yes. In my view, an elector is legally free to vote her conscience. And she is morally free to vote her conscience against how she is pledged if she is thereby affirming a clear or fundamental constitutional rule. Voting against a 34 year old candidate is one easy example. Voting a candidate who would win the electoral college only if the equality-denying principle of winner take all were applied is another example, no doubt not as easy. But I don’t doubt that it would be a profile in courage for a Trump elector to say:

My own personal preferences are conservative. But I cannot vote in a way that violates the one person, one vote principle. So I will cast my ballot for the candidate whose election would best sustain that principle. That candidate is Clinton.

This would be a legal vote, under Ray v. Blair. It would be a moral vote under the principle of one person, one vote. I don’t expect they will—I am just that cynical/realistic about electors—but if 37 electors did so vote, we would avoid a loophole presidency, and affirm again the nature of the democratic tradition that we now live.