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Trump: Gage Skidmore (CC-BY-SA)/ Biden: Gage Skidmore (CC-BY-SA)

On alleged inconsistencies

My Twitter feed is filling with tweets like this:

Here’s the skinny.

In 2016, soon after the election, I wrote an essay in the Washington Post arguing that electors were free to vote contrary to their pledge, and that, like the first such “faithless” vote by any elector (Sam Miles, 1796), voting to follow the popular will over a party pledge was a legitimate reason to vote contrary to a pledge. Hillary Clinton had won the popular vote—by a lot. Electors, I believed, had a constitutional discretion to consider that fact before they voted. This belief was not uncommon among lawyers and historians studying the matter. Here is, for example, Supreme Court Justice Jackson:

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.

At about the same time, others, no doubt more realistically, believing it impossible for Republican electors to vote for Clinton, thought it not quite impossible that they might be persuaded to vote for someone other than Donald Trump. Trump had lost the popular vote, and he was despised by many, including many Republicans. One Republican elector, Chris Suprun of Texas, declared he would not vote for Trump because he “show[ed] daily he is not qualified for the office.” Another group of mainly Democratic electors, the “Hamilton Electors,” began trying to persuade 36 Republican electors to join Suprun and vote for someone other than Donald Trump. That act would have thrown the decision to the House of Representatives. The House, they believed, could then decide whether Trump, or some other Republican, should become the 45th President of the United States.

After the electoral college voted, some of these electors were punished for their work. In Washington state, four were fined $1,000 each. In Colorado, one was removed as an elector because of his vote, and two others were threatened. Because I thought this an important question to resolve before it determined an actual election, I offered to take these cases to resolve whether indeed electors were constitutionally free to vote their conscience. Whatever the answer to that question is, I thought we should know it before an election. This was not the sort of matter the Supreme Court should have to decide if deciding it would determine who would be President.

In July, the Supreme Court decided, unanimously, that electors were in fact not constitutionally free. Whatever the framers' plan—what Jackson had said “no one faithful to our history can deny”—democracy had overtaken it. Electors were not free to ignore state law. For “here,” as Justice Kagan ended her opinion, “We the people rule.”

So how then to think about my “juxtapositional discordance,” given that I have argued Joe Biden has been elected President, and that no elector could have reason to vote contrary to his or her pledge?

First, and most obviously, Donald Trump has not beaten Joe Biden by 3 million votes. Joe Biden has beaten Donald Trump by 6 million votes. Democracy favors Biden, not Trump.

Second, and more relevantly, the Supreme Court has determined that electors are not free to be “faithless” to their pledge. If the law was unclear before, it is perfectly clear now. No elector can violate the law by voting against the peoples’ will; no elector can violate her private pledge without fear of a legal injunction directing them to vote as they promised.

And third, and most importantly, the principle that animated the Supreme Court’s decision against “faithless electors” also constrains “faithless legislatures.” Some on the Right are calling on Republican state legislatures to select a Trump slate of electors, despite their people voting for Biden. But if anything is clear about the founding, it is crystal clear that the framers did not want a president selected by state legislatures. If the “people rule” electors, by denying them a discretion that most had assumed they were intended to have, then, a fortiori, the “people rule” state legislatures, by denying them a power that the framers had expressly chosen to withhold from them.

So the facts are different and the law is different. And in my view, to recognize those differences is not “juxtapositional discordance.” It is reality.

And thankfully so.

Written by

law professor, activist.

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