Yesterday, the Supreme Court heard arguments in two Electoral College cases. I argued the first, Chiafalo v. Washington as petitioner, and my colleague, Jason Harrow, argued the second, Baca v. Colorado Department of State, as respondent. That means we had prevailed below in Colorado, and not in Washington. That split led the Court to take the case to resolve the issue before the next election.
The essential question that the cases present is whether the automatic removal system that Colorado, and five other states have adopted, including now Washington—a system that makes it impossible for an elector to deviate from the popular vote, even if, in states like Washington and Colorado, the candidate has died—is constitutional. Can the state, through law, remove all discretion in an elector, even if an election goes sideways?
I’ve seen this case argued now in three very different courts: The 10th Circuit, where we prevailed, is a lower federal court, meaning the judges have life tenure. The Washington Supreme Court, where we lost, is the highest state court in Washington, and has been an inspirational court on so many issues, with judges elected to 6 year terms. And now the United States Supreme Court, our highest court, with judges who, like the 10th Circuit, also have life tenure.
The biggest difference among these courts is not in the talent of the judges — they were all uniformly impressive. The biggest difference is the extent to which the non-legal questions seemed present within the legal arguments. In the 10th Circuit, it was law all the way down. In the Washington Supreme Court, there was never anything but law addressed, yet you could almost feel the political tension that the case presented. How could these elected judges declare that the peoples’ votes would not always control? But in the United States Supreme Court, there was no hesitation in thinking about the non-legal questions: “Election law experts,” Justice Alito declared, had predicted there would be “chaos” if electors were held to have a legal discretion. What about that prediction? Most of the argument was the battle to address those predictive and structural questions.
Even without the pandemic, an oral argument is not the ideal context for this sort of structural review. Constitutions are complicated. Shifting one bit here can shift lots elsewhere. There are predictive claims made that cannot be answered in 100 word replies. And yet the context of the argument is set by briefs that are not cross-examined, and analysis that is often incomplete.
But first, to understand this post, you need to understand something about me: I’ve never spoken publicly and felt happy about it afterwards. That is a pathology, I get it, and it torments me. I speak publicly all the time — literally, hundreds of lectures all across the world. And even when, on reflection, and at a much later date, I think it’s gone well (e.g., here, or here), there has not been a single morning after in which I have not awoken to thoughts about the million things I wish I had done differently. I speak, though it is never fun. And my biggest hope is that I learn somehow and someday to silence my own critic, because he (and he is a he) is the harshest I face (which is saying something, if you know something about my critics).
This morning was no different, except the thoughts are louder. And while I don’t have the cycles to cycle through every point of second guessing—I’ve promised myself and my family that I would return to them today—there are two that I will name, if only to silence them in my head. One feels like an alternative execution; the other, an alternative strategy.
To present these alternatives is not to predict the result. I still believe—but I would, wouldn’t I—that if the Court works through what the Constitution actually says, and it avoids the bizarre suggestion that the history is in any sense ambiguous, it will conclude as it should that the Constitution is as it is. And that if the people don’t like it, then it is Article V that should correct it — not the Supreme Court. We’ll see soon enough. Until then, may these words help me sleep.
There wasn’t a single question yesterday that hadn’t been asked in the preparatory sessions that we had conducted. And high among the list of questions asked were the questions that were the most difficult yesterday — the “chaos” questions. At the core of these questions was a surprisingly revealing hypothetical — bribery. Surprisingly revealing, because what does it say about our politics that we are really imagining someone bribing three dozen electors to flip an election?
The basic question was something like this: Would our rule, which said that the state had no power to regulate the vote of an elector, allow the state to regulate bribery?
That question has two aspects — first, technically, could bribery be banned; second, practically, could bribery be intercepted by the state before it had its on a vote.
The answer to the first question was easy — yes of course, the Supreme Court had held that corruption could be regulated. The answer to the second was more difficult—under the state’s rule, bribery was automatically eliminated, since the votes of an elector could never be changed; under our rule, there would be no practically effective way to remove the bribed elector before the electors’ vote, so yes, there was a chance, that a bribed vote could get through.
Here then is the alternative execution. We had confronted this question so many times before. Almost everyone had told us it was the most damaging perception we faced. The challenge was always, how do we neutralize the perception? It was my decision to argue that there were risks either way. I now think a different approach could have neutralized that argument more effectively. But let me start with why we thought it was.
The biggest problem with the automatic system that Colorado and Washington defended is the case of death after an election but before the College votes. That might seem remote. It has actually happened twice in our history. And under the precedent that Congress has set, a vote for a dead person is a wasted vote. Congress can’t change it. Neither can a dead person be elected to office. So it’s a vote that counts for no one, and therefore it could well throw an election into the House.
That could be chaos. Here’s just one scenario: Biden wins every state Clinton did, plus Michigan, Pennsylvania and Wisconsin. That gives him 279 electoral votes in the College — making him the presumptive winner. Then, God forbid, he dies before the College votes. Under the rule that we were fighting, Washington and Colorado’s votes for Biden must stay with Biden. That means, no one would have a majority in the College. That means, the decision would then go to the House—where each state gets one vote. But the Constitution doesn’t actually say when it goes to the House: does it go to this House, or to the House that will be elected in 2020? Federal law says the 2020 House, but there has long been a question about whether that law is actually constitutional. By what right does one Congress bind another? So conceivably, if it looks like the Republicans will lose even more seats in the House, Mitch McConnell could insist that the President of the Senate — Vice President Pence—open his mail early, and count the electoral votes early. And when no one gets a majority, then the existing House should “immediately” (as the Constitution puts it) deliberate on who the next President should be. It takes a majority in the House, each state gets one vote. Right now, there are 26 Republican states. If every vote holds, that means Trump would be reelected — even though the Democrats would have won, by hypothesis, a majority of the popular vote, and a presumptive majority in the College.
My aim was to make sure that this competing risk was at least on the table. Our hope was that the Court would then think that if there were risks on both sides, they should simply do what the Constitution requires.
I now think there was an alternative: That it should be obvious that by prevailing, we would be creating no additional risk, while if we lose, the hypothetical I’ve just sketched is a clear showing of an additional risk.
Because the critical fear that animated this “chaos” concern was, again, the fear of bribery. Washington and Colorado’s laws eliminate that possibility (at least at the level of the Electors); striking down those laws would, the suggestion was, increase the possibility of bribery.
But if we win, there would be zero effective increase in the risk of bribery. Because even if the votes of Washington and Colorado (and the 7 other similar states) are protected against bribery—that’s 84 electoral votes— there would remain 454 electoral votes that were not. So yes, there are fewer potentially corrupt Electors, but if you think Electors are corruptible, then there are still plenty who remain to be corrupted.
That fact means that at least the anxiety most present in the argument would not be any greater if we won than if we lost. And more importantly, except for these automatic jurisdictions, recognizing a power in the states to remove electors based on their vote would do absolutely no good. No one is going to be able to even know that there was even a potential bribe until the vote has been cast; at that point, it is Congress that should decide whether to count the potentially bribed vote. Though it has never done so (except for votes for a dead candidate), there’s no reason Congress couldn’t decide that a bribed vote was a vote “not regularly given,” and refuse to count it. This was Breyer’s insight in the 4th segment of the argument: In reality, only Congress would be able to see the bribery and address it effectively. Because before the College votes, how do you know who might have been bribed?
But what about other cases of so called faithless electors? Here again, the moniker “chaos” made it difficult to see reality.
We know, looking backwards, that only a tiny tiny number of electors had ever voted anomalously. Of the 23,507 votes cast by electors in a presidential race, only 90 were anomalous. 63 of those were anomalous because the candidate (Horace Greeley) had died. 27 were votes for different candidates. Exactly one of those 27 was a switch to the opposite party in a context that could have mattered. That was a 1796, when an elector switched sides to reflect the actual popular vote in his state. In every other case, the switch was understood at the time to pose no risk to the ultimate outcome. Some votes were mere political statements—Mike Padden (WA) in 1976 voted for Reagan rather than Ford; Bright (ME) and Abdurrahman (MN) in 2016 voted for Sanders rather than Clinton. But the rest were understood at the time they were made to have no effect on the actual results. Every one of them was understood at the time cast to be different but not in any sense destructive.
This argument is met with skepticism by most: Sure, that’s what happened in the past. But if the Supreme Court declared that electors had, as Washington’s brief described it, “unfettered discretion,” then why wouldn’t we expect more anomalous votes in the future?
And here, the answer depends on understanding a bit more about who electors are and about what the Supreme Court should ultimately say to them.
Because of course, no one is arguing for “unfettered discretion.” As I said in my opening, the discretion of an elector is deeply “fettered.” It is fettered morally and politically. Electors make a promise, and that promise means something. If the Supreme Court upholds their discretion, it should frame it in stark and overwhelming terms:
Yes, like a juror, your vote is ultimately free. But you, like a juror, have an enormously important obligation to do as you have promised, and to live up to the promises you have made. Your discretion is not unfettered, because you have obligations to country and party. And it is almost inconceivable that you would ever have a moral justification for breaching those obligations. But because it is only almost inconceivable, the system leaves you free to exercise your judgment and vote your conscience.
But how can we trust them, the standard reply goes? We don’t even know who they are. Their names are not on any ballot in 45 of the 51 jurisdictions that elect them. How can the people trust electors if they don’t even know them when we vote?
Yet here is where we desperately needed a better picture of this invisible actor, an elector. Because these are the most loyal of the most loyal members of a political party. Electors in this sense are not jurors. They are not randomly selected from the voting roles. They are deeply committed partisans who it is almost inconceivable that you could flip — unless there were an overwhelmingly clear reason why they should flip. And if there were such a reason, why would we ever want to make it impossible?
These, therefore, are the reasons to think that deciding in favor of elector discretion would create a vanishingly small—probably no—additional risk of “chaos,” while deciding against elector discretion creates a demonstrably additional risk:
(1) As things are, the risk of bribery is the same under either scenario.
(2) And even if every state followed Colorado, and thereby eliminated the bribery risk completely, that would still leave the risk created by the death of a candidate.
(3) And even if that risk were eliminated completely, by state laws directing how the electors should vote if the candidate dies, then still there is the “if something has gone terribly sideways” risk — you know, the sort of risk that we might face in the face of a pandemic. What eliminating elector discretion does here is to leave the results in the hands of deeply and pathologically disciplined partisans — Congress — rather than the partisans who populate the College.
Why would that be any better? It would have been difficult, given the 100 word answers the Court allows, but it may have been possible to eliminate “chaos” as a significant and present risk.
Here is alternative in strategy: I opened my argument in a familiar and conventional way: Presenting the textual argument in favor of our legal position; insisting the other side simply didn’t like the Constitution’s design; suggesting, subtly, but maybe not subtle enough, that the Court cannot just invert what the framers gave us, at least on the basis of guesses about risks.
But I shouldn’t have wasted the chance to get them to see the issue fundamentally differently. They knew the legal arguments. They knew everything I was to say in my first 2 minutes. What I should have done was say something they wouldn’t have known. Something that would have helped them see the case differently. Something like this (it would have to be shorter but I’m not going to craft it perfectly here):
Justices, you know the law and the legal issues. I want to start by introducing to you something you’re not likely to know—the electors.
In the 228 years of presidential elections, 23,507 Americans have served as electors. Regardless of Hamilton’s fantasies, almost uniformly, these electors have been deeply loyal political partisans. Not partisan in a nasty sense — I’m not saying they were party over country people. But they were selected by their parties because they were trusted by the parties.
In their two centuries of service, they have earned that trust. There is not a single prosecution for bribery in the history of the college. (By comparison, there have been about half as many members of Congress; 42 have been convicted of corruption.)
The largest number of deviant votes by these electors (63) has been for a reason that none could question — the death of a candidate. Among the 27 remaining anomalies, exactly one has defected to the other side in a context that could have mattered (Sam Miles in 1796). In every other case, the anomalous votes were harmless political statements and understood to be harmless at the time they were made. In no case has an elector ever acted in a way that would have defeated popular expectations; indeed, in the one case of an elector who flipped, Sam Miles was only trying to assure that the popular will would be sustained.
I say all this to say that before you make assumptions about this invisible class of public servants, you should understand their actual work. They don’t get paid, at least anything substantial. They don’t get famous. But we know from the scholarship of Robert Alexander that they take their duties seriously and respect seriously the moral obligations that they live under.
This case is about whether they remain within the constitution that our framers designed. A ruling for the state eliminates the role of electors. There would be nothing more for them to do. Votes would be automatic. No judgment or discretion would remain.
We believe the framers meant for there to be electors who had the right to exercise judgment. We believe that is what the Constitution gives us. And we don’t believe that Washington has the power to change what the framers did, at least without invoking the tools of Article V.
But we also believe that our system needs the judgment of people like the 23,507 we’ve seen so far. If things go well, they’ll remain invisible. But if things go sideways, the College remains a critical human check within the system. Not “unfettered,” but also not as constitutionally and pathologically partisan as Congress has become. If things go sideways, they have proven themselves to be an institution that can be relied upon.
Whatever you do, Justices, we ask that at least you not dishonor the work of these citizens in service. Of all the institutions created by our Constitution — Congress, the Presidency, judges and juries—this institution is the only institution never to have been convicted of violating any corruption law. And never once has it defeated any democratic expectation. You may not like it; you may prefer a different method for selecting the President. But if that’s so, you should let Article V resolve that question, not the judgment of five judges created by Article III.
No doubt, still, the Frodo Baggins question would have gotten the most attention on Twitter. But perhaps this introduction could have surfaced these invisible souls to the Justices who will rule upon their power.
As I said at the start, we don’t know which way the Court will go. We were encouraged that the right questions were coming from justices of all political persuasions. Maybe this case won’t divide on political lines. Whether we win or lose, that at least would be good.
But like most who argue hard cases before the Court, the process in the end is constitutionally unsatisfying. The Court, for at least some cases, needs to become more like a newspapers editorial board, asking both sides to sit down with it, and talk through the issues. The technical questions need to be cleared out through briefs, and maybe short questions (the Globe asked me to write about this, and I did so here). But the actual coming to understanding needs something better than a rigid and abbreviated congressional hearing.
The Court is better than that. They need a process that is as good as they are.
