On what Noah misses: the continuing debate about the electoral college

My friend and colleague Noah Feldman is angry that I would be so “cavalier” about “following the procedures … that shape our constitutional norms.” In my view, however, it is in understanding those procedures that we should be most careful not to be cavalier.

I—along with many others—believe the electors were intended to be something more than mere cogs. That they instead were to exercise judgment in deciding how to cast their ballots.

Noah disagrees with this conventional view. The college’s “purpose,” he tells us, “is simply to effectuate the results of the electoral system we have.” That certainly is the view among the commentators and pundits. But that claim needs more support if it is to dislodge the view of many scholars, including, for example, our colleague Larry Tribe (“electors are free to vote their conscience”) and the extensive analysis of Columbia Professor Richard Briffault. As Briffault sums it up:

Most scholarly opinion agrees that as envisioned by the Framers the electors were supposed to exercise their independent judgment, albeit perhaps with some attention to the will of the people.

That certainly was the view of Justice Jackson in Ray v. Blair (1952) (dissenting):

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.

Against the weight of “most scholarly opinion,” Noah musters a single quote from Hamilton:

Hamilton called the Electoral College “an immediate act of the people of America.” That’s not a safety valve. It’s a faucet.

Yet it didn’t take long for the Net to notice that this was a highly truncated version of the sentence that Hamilton actually penned. As Tim H. noted, the complete sentence is:

an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment.

And so how did Hamilton believe those “persons” were to practice “the temporary and sole purpose of making the appointment”? Again, as Tim H. quotes Federalist 68:

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

That’s quite a complicated “faucet”—one that must “analyz[e] the qualities adapted to the station” and “deliber[ate]” about the “judicious combination of all the reasons and inducements which were proper to govern” its choice.

To this citation of authority, Noah attaches a bit of reasoning. If the electors were to be so un-cog like, he asks, why weren’t they charged with the task of resolving a tie? As he writes,

If the Electoral College had been intended to make a decision of any kind, the Constitution could have given its electors the power to choose the president in case no candidate got a majority.

But the answer to that question is obvious. The electors from the several states were intended to meet in their own states on the same day. There would therefore be no way for them to know that “no candidate got a majority”—at least in the days before Twitter and Skype. They were thus structurally incapable of resolving a tie. Indeed, Madison expressly described to Jefferson the idea of bringing the electors back together to deal with “an abortive ballot.” As he wrote:

An appeal from an abortive ballot in the first meeting of the Electors to a reassembling of them, a part of the several plans, has something plausible, and, in comparison with the existing arrangement, might not be inadmissible. But it is not free from material objections. It relinquishes, particularly, the policy of the Constitution in allowing as little time as possible for the Electors to be known and tampered with.

Thus it wasn’t because the electors were mere cogs that Madison thought the idea of “reassembling” them was a bad one. It was because they could be compromised in the interim. (And by “tampered with,” neither Madison nor anyone else was referring to the idea of arguments that might guide an elector’s reasoning. The interference they were talking about, as Charles Pinckney put it, was “gold.” Thus, no, Noah, it’s not the influence of people like me (“That’s you, Larry”) the Framers were concerned with—as I, obviously, have no gold in this fight.)

So IF you believe that we have a “procedure” for electing our President that includes the votes of people empowered to exercise judgment—guided, as the evidence indicates the Framers believed[1], by, as Hamilton put it, “the sense of the people”—THEN it isn’t “breaking the basic constitutional structures of democracy” to advance an argument about how those electors should exercise that judgment.

Indeed, and to the contrary, what would “break the basic constitutional structure” is to say of the Electoral College (to remix Gertrude Stein a bit) that “there is no there there.” Or to encourage the electors to ignore their duty to exercise judgment. Or to convince them, to channel Tom Lehrer channeling Wernher von Braun, that once the votes are up, “who cares where they come down.” Indeed, the electors should care, fundamentally, for caring is precisely their job.

In my essay, I argued that one of the values that they should care about is the now fundamental principle of American constitutional law—one person, one vote. That the “winner take all” rule that the states have imposed on electors systematically undermined the equality of citizens’ votes. Some votes are worth more than other votes. And that an elector could neutralize that inequality by voting to uphold the results of the democratic election.

Noah dismisses this argument, first by calling it not an argument of constitutional law, but “from democratic theory.” That’s plainly not right. The argument is grounded in the principle first articulated in 1962 by the Supreme Court in Baker v. Carr. It’s in light of that principle of constitutional law that Noah concedes the current system “violates the principle of one person, one vote”—at least “mildly.” “That’s true,” he writes,

but irrelevant to subverting the system. The Constitution creates that vote structure. And there’s a way to change that: by democratic means, not by the arbitrary act of obscure electors engaging in revolutionary change.

Yet here it becomes clear that Noah has missed something pretty fundamental to the argument. Yes, the Constitution creates some of this inequality — in the basic way that electoral votes are allocated to states. But it is the state imposed rule of “winner take all” that causes the significantly disproportionate effect of the electoral college. That’s precisely why fifty years ago Delaware tried to get the Supreme Court to review the constitutionality of “winner take all” in light of the then recently announced “one person, one vote” standard. The Court ducked the question then, but it was a fair and timely request: How should the principle of “one person, one vote” be synthesized with the state practice of “winner take all” allocation of presidential electors? Contrary to Noah’s claim, the “constitution [did not] create[] that vote structure.” States did.

And yes, certainly, one could try to get the states to change the structure that they purport to impose upon electors that denies voters an equal vote. (That’s the important work of the National Popular Vote project.) But so too could a Court strike down that inequality (which is why Delaware asked the Supreme Court to review it), and, at least on the non-cog-like-view of the electors, so too could electors recognize that inequality when deciding how to cast their ballots.

That inequality is not “mild.” The inequality caused by the allocation of electors itself leads votes in some states to be almost 4 times as powerful as votes in other states. But when “winner take all” is accounted for within a swing-state analysis, the gap grows dramatically. As Christopher Duquette and David Schultz calculated, the average multiple between the top ranked and bottom ranked states is 322 for the elections between 1960 and 2004. (Here’s a more recent version of the analysis through 2012). In a calculation of that ratio for this election, Duquette finds a Michigan voter had 50x the power a Utah voter had, and 124x the power a Massachusetts voter had. Whatever “one person, one vote” means, it can’t mean inequality like that.

Noah begins his essay with a “thought experiment”:

What if Donald Trump had won the popular vote and lost in the Electoral College? How would Democrats respond if prominent scholars and public figures argued that Clinton’s electors should break their pledges and elect Trump?

I’ll tell you how: Democrats would see it as an attempted coup d’etat. And they’d be right. The vote in the Electoral College has always been a formality.

I actually faced that question at a conference at GW School of Law in 1998 — two years before Bush v. Gore. As I said then (wrongly, of course), if a President were selected by the electoral college against the popular will today (in 1998), there’d be “a revolution” — regardless of the party that prevailed. I said that then because I believed then that the constitutional norm of democratic selection was so fundamental that the people would never accept a loophole President.

Obviously, I was wrong, as George Bush’s inauguration proved. But let me end this answer to Noah’s essay with two similar thought experiments offered in return:

First, what if a Trudeau-like candidate for President were elected by the popular vote. Yet after his election, it was discovered that he was not in fact yet 35. Would it be wrong, on Noah’s view, for an elector to decide to vote against that candidate, state rules notwithstanding? Would it be “cavalier” for a citizen or a professor to hold up the Constitution and say, “hey, it says 35.” If not, why not, on the theory that “the Electoral College [is] a formality”?

Second, and more directly relevant: What if Bush v. Gore had not happened? What if Bush had won the popular vote, or Gore had won Florida and hence the Presidency? And so what if today, we were faced for the first time since 1888 with an election where the electoral college votes were inconsistent with the popular vote?

Would it then be “cavalier” to argue that we should think long and hard about just how significant the 1888 precedent should be for us today?

That election was plainly stolen from Cleveland by Tammany Hall. (Cleveland was a reformer; Tammany Hall was the corruption he wanted to reform; so despite him handily winning the popular vote of the nation, when Tammany Hall succeeded in swinging his home state against him by 15,000 votes, Cleveland lost the electoral college.) In 1888, the principle of “one person, one vote” was not yet a fundamental part of American law. So without the election of 2000 looming so large in our view, would it have been a scandal for someone to say after this election that,

“hey, let’s stop and think about this before we select another loophole president. The mistakes of 1888 are not amendments to the Constitution. And indeed, nothing in the constitution actually compels this result. To the contrary, something in the constitution as we now understand it — one person, one vote—argues strongly against it. At a minimum, electors should consider that fundamental value as they decide whether or not to respect the state imposed rule of winner take all.”

And if that would have been a fair argument without Bush v. Gore, what seriously is the argument that Bush v. Gore preempts it today?

It was a mistake in 1888 to allow a corrupt organization to steal the presidency from Grover Cleveland. It may or may not have been a mistake in the essentially tied election of 2000 for the electoral college to confirm the inequality that winner take all had created, by selecting Bush. I don’t remember this argument being pressed in 2000 — so exhausted were we all by the Supreme Court’s extraordinary intervention. It may have been. In my view, it certainly should have been.

But those mistakes notwithstanding, what we should be deciding now is what values we recognize as defining our constitutional norms, now and going forward. Our Constitution, properly interpreted, tells electors to exercise judgment. That judgment should embrace our common values. Those values include the value of one person, one vote. That principle should guide electors away from state imposed rules that increase inequality, and instead vote to uphold the popular election—at least if they can do that by ignoring a state-imposed winner take all rule.

If this became the norm among electors, then we’d never see this conflict again. And yes, that may well change the pattern of how candidates campaign in America. But why would that be a bad thing? As it is right now, candidates campaign in ten, maybe 11 states: Michigan, Wisconsin, Iowa, Nevada, North and South Carolina, Pennsylvania, Ohio, New Hampshire, Colorado, and maybe Florida. Would it be a terrible thing if candidates for President of the United States had to campaign in more than 11 states of the union?

We are one nation. Our President is to stand for all of us. There is no reason electors must select a loophole president — a candidate who wins only if our votes are not counted equally. So long as that power of judgment remains vested by the Constitution in electors, it is not “cavalier” to advance arguments about how that judgment should be exercised.

To the contrary, “cavalier” would be to permit this election to be decided on the basis of no deep reflection at all. Go ahead and change the Constitution to remove our non-cog-like-electors from the mix. But until you do, norms of open and honest debate should permit one to express a view about how those non-cog-like-electors could reason, without the charge of treason to the norms of constitutional government.

[1] Hamilton gives the most famous statement suggesting the presumption of the Framers that the will of the people would decide it:

It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided.

Yet it’s not just Hamilton who held this view. Below I include a number of contemporary quotes suggesting the same. But we should be clear about just why this was a complicated question for the Framers. The idea of democratic election of the executive was not yet universal in the states. Some states directly elected their governor; other states did so indirectly. But the framers considered the idea of the federal legislature selecting the president, and rejected it. And it considered the idea of the state legislatures selecting the president, and rejected that too. As John Dickinson, one of the delegates at the convention, described in a letter to George Logan in 1802:

As I was one of the Convention who framed the Constitution, I can affirm, that the Intention of that Assembly was that the Electors should be chosen by the People and not appointed by the Legislatures of the States.1 There was a Committee of one delegate from each state appointed by the Convention, to consider of and report the most advisable Mode of choosing the President. I do not pretend to be exact as to words, as I write from Recollection. I was the Member from Delaware. One Morning the Committee met in the Library Room of the State House, and went upon the Business. I was much indisposed during the whole Time of the Convention. I did not come into the Committee till late, and found the members upon their Feet. When I came in, they were pleased to read to Me their Minutes, containing a Report to this purpose, if I remember rightly-that the President should be chosen by the Legislature. The particulars I forget. I observed, that the Powers which we had agreed to vest in the President, were so many and so great, that I did not think, the people would be willing to deposit them with him, unless they themselves would be more immediately concerned in his Election-that from what had passed in Convention respecting the Magnitude and accumulation of those powers, We might easily judge what Impressions might be made on the Public Mind, unfavorable to the Constitution We were framing-that if this single Article should be rejected, the whole would be lost, and the States would have to work to go over again under vast Disadvantages-that the only true and safe Principle on which these powers could be committed to an Individual, was-that he should be in a strict sense of the Expression, the Man of the People-besides, that an Election by the Legislature, would form an improper Dependence and Connection. Having thus expressed my sentiments, Gouverneur Morris immediately said — “Come, Gentlemen, let us sit down again, and converse further on this subject.” We then all sat down, and after some conference, James Maddison took a Pen and Paper, and sketched out a Mode for Electing the President agreeable to the present provision. To this we assented and reported accordingly.

That Dickinson felt it necessary to explain this suggests the awareness that many increasingly had after the constitution was adopted that they had left a critical assumption unstated. Dickinson himself was advancing the idea that the Constitution be amended to add “to be chosen by the people,” after the phrase “a Number of Electors” in Article II. He was wise to be concerned, because over time, the presumption has returned that state legislatures could withdraw the selection of electors from the people, and exercise it themselves. Rufus King worried about this in a speech in the Senate in 1816:

In conformity with the original view of the authors of that instrument, I would restore, as thoroughly as possible, the freedom of election to the people . . . It was with the people the Constitution meant to place the election of the Chief Magistrate, that being the source least liable to be corrupt. (March 20, 1816)

History shows that King and Dickinson were right to worry. In Bush v. Gore, 531 U.S. 98, 104 (2000), the Court reaffirmed the power of the states to recall their control over the electors, even after the people had voted.

But I agree with my colleague Michael Klarman that the sense at the framing was that “the sense of the people” would govern. The Anti-federalists had attacked the Constitution because, in their view, the people could be excluded from selecting the President. As Klarman describes in his masterful The Framers’ Coup (2016):

“A Columbian Patriot” argued [that the electoral college] was “nearly tantamount to the exclusion of the voice of the people in the choice of their first magistrate. It is vesting the choice solely in an aristocratic junto, who may easily combine in each state to place at the head of the union the most convenient instrument for despotic sway.” (Kindle edition: 8469–8472)

Yet as Klarman notes:

To the objection that state legislatures might retain for themselves the power to choose presidential electors, some Federalists replied that denying this right to the people would be obviously inappropriate, even if technically not forbidden by the Constitution. (Kindle edition: 8515)

The framers believed that by giving the most democratic branch in American government generally — state legislatures—the power to determine how electors were selected, they would assure that the selection would follow a democratic will. But however they were selected, who they were to be is citizens exercising judgment. In my view, that is who they should be still.