Equal Citizens January 2019 Update

By Lawrence Lessig

It’s the 15th, which means we owe you a message about where we are and where we’re going. And while we’ve got many sticks in the fire — and one I’m itching to launch asap (more on that soon I hope) — let me use these paragraphs to talk a bit more about what our legal department (Jason and I) are focused on right now: the lawsuits to resolve whether presidential electors are free to vote their conscience.

Next Tuesday, I’ll make the argument to the Washington Supreme Court that they are constitutionally free. On Thursday, our lead counsel, Jason Harrow will make the same (likely better) argument to the 10th Circuit Federal Court of Appeals. If we win (at least ultimately in the United States Supreme Court), then a presidential elector will be constitutionally free to vote as he or she wants, his or her pledge notwithstanding.

Why would we EVER want to do that?

You might remember that we got into this case after 7 presidential electors voted their conscience over their pledge in 2016. It was my view then — and it remains my view now — that whatever the law is, we should resolve the question of whether electors are free or not before it creates a constitutional crisis. We know from demographics that the Electoral College votes are going to remain incredibly close. If electors are free, then everyone should understand that before the actions of electors throw any election into doubt.

So we took up two cases to resolve this question. In both, the presidential electors we are representing were part of an effort to give the House of Representatives the chance to choose a Republican other than Donald Trump. They were, as they called themselves, Hamilton Electors. They believed the framers gave them an obligation to exercise judgment before they cast a ballot. It was their judgment that their enabling a choice other than Trump had become an overwhelming ethical or political obligation.

In one sense, this case is about an abstract constitutional question — do presidential electors have a constitutional freedom to exercise their judgment, a pledge notwithstanding? But there is an incredible story beyond that abstract question tied to our plaintiffs. Each of these citizens did something that created an enormous burden for themselves. But they did it because they believed it was their obligation. And after I met them, I could see just how difficult that decision was for each of them, and how much each has suffered for what they did.

As I’ve dug into this case over the past two years, I’ve become completely convinced that the law is on their side. The framers created this special role called “electors”; electors are to perform a “federal function,” as the Supreme Court has described it; it is con law 101 that states are not permitted to control a “federal function”; it should be con law 101 that electors, therefore, cannot be punished for performing their function in a way the state does not like. I don’t believe this will be a difficult case, legally, for the United States Supreme Court when we get there.

What will be difficult is the political consequences of this case. If this is what the constitution means, is this system what America still wants?

There are many who have been pushing for Electoral College reform since, literally, the founding. There are some who believe we should eliminate the college; others who believe we should at least assure (through rank choice voting) that the winner has at least majority support in America.

Regardless of how this case is resolved, it will help that reform. If the Court concludes, as I believe it will, that the framers’ rule remains the law, then it will give a strong motive to everyone to push for the reforms that could avoid creating a political crisis. (The National Popular Vote Compact, for example, would create a significant enough buffer to avoid the chance of a small number of electors changing the results.) And if the Court concludes the other way, that will at least clarify the question going into a new election, and give more confidence to reformers about the consequence of their changes. (For example, how a state implements rank choice voting for presidential electors depends fundamentally upon whether the state can really direct electors.)

In any case, we are hopeful we can at least inspire these courts to decide this question quickly so that we have a chance to get the United States Supreme Court to resolve the matter by the end of this year. That’s a tight timeframe, but it is certainly possible.

We’ll report back after the arguments. Thank you to everyone who has made it possible for us to at least clarify this (potentially critical) question of constitutional law — in time to avoid, we hope, a constitutional crisis.

This blog post was adapted from Lessig’s monthly email update. To receive these emails, click here.