Rick Hasen is among the sharpest minds in the world of election law, and I find myself nodding in violent agreement with most of what he writes. That’s why I was surprised to read his recent Slate piece, in which he claims that litigation attempting to get the Supreme Court to answer the question of whether presidential electors are free to vote for anyone is a mere “ploy” that could “backfire spectacularly.” I successfully represented the presidential electors in the Baca case in the Tenth Circuit, and I just don’t see it.
To understand why, it’s important to lay out the way presidential elections work today and how they could go awry. As Hasen says, voters in every state go to the ballot under the impression they are voting for President, but in fact they cast votes for slates of presidential electors. Forty-eight states appoint electors who are from the same political party as the presidential ticket that gets the most votes in the state; two states, Nebraska and Maine, also select electors by congressional district. In other words, if Trump wins more votes in Arizona in 2020, then Arizona’s 11 electors will be Republican electors; if a Democrat wins, there will be 11 Democratic electors. By law, these electors then meet in their state capitals in mid-December and formally cast “electoral votes” for President and Vice President.
Historically, these electors have been expected to support the nominees of their party, and over 99% of the time, they have done so. But the vast majority of electors never actually had to by law; instead, this norm of party support was enforced by public promises and by custom. Plus, most electors, most of the time, have no good reason to depart from this expectation.
Beginning in the mid-20th century, a few states began looking for ways to legally enforce this norm, and so they passed laws “binding” electors to vote for the winner of the popular vote. Twenty states don’t have these laws on the books, and of those that do, most states have no express enforcement mechanism. Only a handful—fewer than 10—actually allow electors to be penalized or, worse, removed from office for violating this expectation.
I have no problem with laws requiring pledges, and neither does the U.S. Supreme Court, which approved them in a 1952 decision. But any binding law with an enforcement mechanism is a pretty clear violation of the constitutional right of “electors”—that is, choosers—to make their own free choice, as politicians of both parties have recognized. For instance, after the Constitution was amended in the 1960s to give Washington, D.C. three electoral votes, Congress passed a law requiring electors to pledge to support the winner of the popular vote in D.C. but expressly leaving out any way to enforce it. As one representative said at the time, the provision regarding electors’ “duty . . . has no legal effect” but instead “has a moral suasion.” After all, as another said, a bill about electors could not “amend the Constitution.”
All of this means that independent voting by electors can currently swing an election. Indeed, Hasen doesn’t discuss the last election in his piece, but in 2016, two Trump electors and five Clinton electors broke away from the nominees of their party. Congress counted those dissident votes, as it always has. And three additional electors tried to go rogue but were thwarted by state officials acting under uncertain authority. Talk about uncertainty: some states let these votes go through, others didn't. If the outcome turned on that distinction, who knows what would have happened.
The electors' actions led to litigation that continues to this day. The goal of our continuing these cases is to make sure litigation like this does not come in the heat of an electoral battle—which, as Hasen acknowledges, is a good idea.
So if we agree on the need to resolve this open issue, why does Hasen think this litigation could “backfire spectacularly”? He gives two reasons. First, he says that, if we win in the Supreme Court and elector freedom is endorsed, that “would put tremendous pressure on the parties to choose electors who will be faithful and not be swayed,” and there could also be lobbying of electors and thus increased uncertainty of the result. But, if so, then increased attention to this issue from our cases is a good thing. In 2016, the parties didn’t take elector selection seriously and there was a real chance of relatively anonymous, unvetted electors swinging an election. In the future, if the parties know the stakes, they can presumably do a better job of elector selection.
Second, Hasen seems to think that one remedy we hope to spur—the adoption of the National Popular Vote Compact—would somehow be more uncertain than the status quo. He claims this is so because any state that has passed the Compact and so has previously agreed to award its electors to the national popular vote winner could then reverse itself and change the way it picked electors if it looked like the state’s preferred candidate was going to lose the popular vote.
That would indeed be an extraordinary manipulation of the democratic process, but the Compact at least tries to limit this manipulation by locking in an electoral mechanism six months before an election. By contrast, there is nothing that clearly stops any state from manipulating the electoral process in this way today. If state politicians in Florida or Arizona thought there was too high a risk of a Democrat winning either state in 2020, they could pass a law that said electors would be selected by congressional district instead (which would split the vote), or they could even pass a law that simply withdrew the right to vote entirely and just decree that the electors from both of those states would be all Republicans. My organization, Equal Citizens, is currently litigating a series of cases to try and eliminate winner-take-all elector selection and put some limits on the state’s power to appoint electors any way it pleases, but we’ve lost in the lower courts, so there’s no court decision that would obviously block that dangerous move.
The key realization—which Hasen acknowledges at the end of his piece—is that the old-fashioned, duct-taped, slapdash way we have of selecting the president is riddled with holes that make it easy for an election go haywire. And that’s why so many presidential elections have already gone haywire: most notably in 1800, when the electoral college ended in a tie; in 1824, when no candidate got an electoral college majority and the election was thrown to the House; in 1876, when there were disputed slates of electors and the winner wasn’t chosen until two days before the inauguration; and in 2000, when the Supreme Court intervened a month after the general election to halt a Florida recount. So our litigation cannot make anything worse. Instead, it can make explicit one of the many ways the system of presidential selection is a disaster. If we do that and it spurs changes, that’s great. But even if not, at least we’ve gotten a definite answer to a key unanswered question.
When all is said and done, if anyone doen’t like the Supreme Court’s answer, don’t blame me or my elector clients. Blame the Constitution and then work to improve it. I certainly will.