Tuesday, July 7, 2020

SCOTUS Gets It Right on the Electoral College

Ever since the disastrous elections of 2000 and 2016, in which the candidate rejected by the popular vote received a majority of the electoral college vote, there has been increased dissatisfaction expressed about our electoral college system. It is not quite clear how best to reform or replace it, what form of direct popular election would work best, or what its unintended side effects might be. But there is probably a considerable consensus that the present system should at least operate the way we expect it to - with electors voting for their party's nominee. That's what we presume will happen when we call the election in November, a full month before the electors actually cast their ballots.

Apparently the Supreme Court agrees with this common expectation. According to yesterday's unanimous decision in Chiafalo v. Washington, states may (as 32 states plus DC now do) require electors to vote as expected and also (if the state chooses to) sanction them if they don't. By 1832, every state except one (South Carolina) had switched to popular election of electors, and the system we have since come to take for granted has assumed that the electors will vote as expected. Citing an earlier precedent, Justice Kagan's opinion allows this "long settled and established practice" to have "great weight in a proper interpretation of constitutional provisions" - in this case the provision allowing states to appoint electors  "in such Manner as the Legislature thereof may direct."

Undoubtedly, it was the intent of the Framers for electors to exercise their own judgment. They would, Alexander Hamilton wrote, "possess the information and discernment requisite to such complicated investigations." Already by the election of 1800, however, the political party system had developed to provide that "information and discernment" for voters.

There were several so-called "faithless electors" in 2016. What on election night in November had seemed like a 306-232 win for Trump turned into a 304-227 tally - not enough to alter the expected result, but certainly one additional discredit to our system (in trouble enough already).

Making it more likely that that the system will work the way we expect it to may be small consolation to the increasing number of Americans who no longer want a system which works in effect to disenfranchise so many citizens and which twice in two decades has produced a president rejected by the majority of voters. But surely improving that system should not depend on the arbitrary caprice of individual electors displaying even greater contempt for the will of the voters. That much, at least, we should all be able to agree on.

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