Rick Hasen: “But not to ignore it…”: What is “it”?

Lessig
Lessig
Nov 25, 2016 · 2 min read

Rick Hasen—who among lawgeeks is the dean of election law—is troubled by my oped about the electoral college. As he concludes:

This seems to go against rule of law ideas that we all abide by the rules for an election set in advance. Turning the electors into mighty platonic guardians doesn’t seem to be the right way to go.

So yes, I’d love to get rid of the Electoral College. But not ignore it in an election where everyone agreed it was the set of rules to use.

But this just begs the question: What is the college?

One could have the view that, whatever it was meant to be, electors have become just cogs in a wheel. If so, Hasen is right.

But if the college has any of the character that it was meant to have, then for electors to exercise judgment is not to “ignore it in an election where everyone agreed it was the set of rules to use.” To the contrary, it is to take those rules seriously.

In my view, the framers established a framework. Hamilton’s description might well evoke Hasen’s feared Platonic guardians:

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.

But if that “deliberation” about “reasons and inducements” is guided by the object of those deliberations (again Hamilton)—“that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided”—I’m not too fearful of the scope of that power.

Hasen says “the electors in the electoral college are not chosen to exercise judgment but to translate the will of the people in each state.” If that were true, why would we need electors? And more pointedly: What does “the will of the people in each state” mean? Winner take all? And if so, where is that rule in the actual Constitution?

As Richard Briffault (another Dean of election law) notes, electors have exercised judgment in 9 of the last 17 elections. Why isn’t that part of “the rules” too? And if it is, then why shouldn’t we be discussing what principles should guide that judgment? Or at least, why shouldn’t we be discussing that more than we discuss the college as if the Constitution said of it: “The electors of each state shall cast their ballot as the majority of the voters in that state did.”

Equal Citizens

A conversation about (finally) achieving political equality.

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Lessig

law professor, activist.

A conversation about (finally) achieving political equality.

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