Midjourney’s rendering of “a confused Charlie Kirk”

On Electors: For the (obviously) confused



Charlie Kirk pointed to an essay I wrote in 2016 as evidence that the Alternative Electors in Michigan should not be charged with any crime.

Very quickly, that tweet led some to call for my “arrest.” Because there are some obvious points that seem to be being missed in this debate, and because I’m kind of hurt that the really relevant article to be cited by those defending the Alternative Electors seems to have been totally ignored, I offer this brief guide to the careful reader.

Yes, after the 2016 election, I floated an idea for how to resolve inverted elections (elections where the winner of the popular vote is not the presumptive winner in the Electoral College): Electors, in such cases, I argued, should simply vote for the winner of the popular vote.

That idea was inspired by the very first presidential elector ever to switch sides (and the only elector in American history to switch to vote for the “other side”): Samuel Miles. In 1796, Miles, an elector from Pennsylvania originally pledged to Adams, voted for Jefferson, because he believed (and with good reason) that Jefferson had in fact won the popular vote in Pennsylvania. His switching sides outraged many. That he was free to switch sides was conceded by practically all. Indeed, when the 12th Amendment was being considered (the Amendment which changed the way electors cast their votes), the example of Miles was frequently discussed. Nothing in the 12th Amendment purported to remove the freedom Miles had exercised.

In suggesting that modern electors follow that ancient precedent, I was actually speaking to two different types of electors. One type, like Miles, had no law that purported to restrict how that elector might vote. For example, in Texas, there is no law that purports to constrain the freedom of presidential electors. The other type, unlike Miles, lived in states that did have laws that purported to control how they might vote. It was my view then that such laws were unconstitutional. That view of the original meaning of the Constitution is shared by the most prominent of constitutional originalists (see, for example, this article by Michael Rappaport).

After I wrote that essay, others, more politically astute, started pushing a related but different idea. The “Hamilton Electors” (who should, in my view, have been called “The Miles Electors”) started floating the idea that an equal number of Clinton and Trump electors should pledge to vote for someone other than Clinton or Trump. If enough did that, that would throw the election into the House. The House could then decide whether to affirm the inverted election or to choose someone different. No one advancing this plan believed the House would select Clinton. But they did believe it was possible that another Republican candidate would be selected as a compromise. And they believed that result would be closer to the result that the people who voted for Clinton actually wanted: in their view, if Clinton could not be president, then the Hamilton Electors believed that Clinton voters would prefer that the winner at least not be Trump.

I wasn’t involved in the organizing or execution of the Hamilton Electors’ plan. I did help rally legal support for any Elector who was considering exercising discretion. And after a few of the Hamilton Electors who did choose to exercise their discretion found themselves in legal jeopardy, I volunteered to help them resolve the ultimate constitutional question never before addressed: Did electors have a constitutional freedom to vote their conscience? Or did states have the power to direct electors to vote as the state legislature chose?

I certainly did have a view about what the Constitution required. Though I am not a conservative, I share the view of Michael Rappaport that the Constitution did vest discretion in electors, and that no state law could take that discretion away. (The only other place the Constitution uses the word “Electors” is to refer to the people who vote for Members of the House: So could the Commonwealth of Massachusetts say that all such “Electors” must vote for a Democrat?)

But whether or not I (and Rappaport and many others) were right about what the Constitution required, I thought it important to resolve the question before it created a constitutional crisis. So many pro bono hours of my life (and the life of many at EqualCitizens.US, including our lead lawyer Jason Harrow) were devoted to getting the Supreme Court to resolve this question outside of the context of an election. In July 2020, the Court did indeed resolve it. In an 8–1 opinion (by a friend, Elena Kagan, who had started teaching with me in the same year at Chicago), the Court held that states were free to direct the vote of presidential electors. Thomas was the only one to write separately. But he agreed with the result.

Yet notice: that case says nothing about an elector who is not bound by state law. Thus as the law was, entering into the 2020 electors, electors from states that had laws binding how an elector might vote were legally obligated to vote as bound. But electors from states without binding laws were still free to vote their conscience.

So how does all this relate to Charlie Kirk’s tweet? Not at all. Because the issue at issue with the Alternative Electors now charged with a crime in Michigan is not how valid electors vote. The issue is how electors are chosen — and specifically, in a contested election, how they preserve their vote if at the time the Constitution requires electors to cast their ballot, the results are not know.

And here, the writing of mine that is most relevant is not a 2016 op-ed in the Washington Post. It is an essay I wrote with Van Jones in 2020 about the need for alternative electors — in a contested election — to cast their vote on the day the electors are to vote, to preserve their vote if indeed the election goes the other way.

At the time Van Jones and I wrote that essay, it looked like Pennsylvania could be the deciding state. If indeed the election was super close in Pennsylvania, and if the vote was not resolved finally before the electors were to vote, we argued that both sets of electors should cast their votes on the day chosen by the Constitution, so that the vote of the ultimate winner of the election was not lost. The precedent for this argument was the now famous case in Hawaii, where both Kennedy and Nixon’s electors cast their ballot on the day the Electoral College voted, so as to ensure there would be votes cast by the candidate who ultimately prevailed in the then pending dispute about that election to be counted on January 6.

As it turned out, Pennsylvania’s vote was resolved before the time the Electoral College was to vote. And yet in the minds of many (including many in Congress), there were still many states where the ultimate results were clouded by charges of fraud and the like.

And this led to many Trump electors deciding to cast their ballots on the day chosen by law, even though they were not the then-certified electors. That act is now the target of criminal prosecution in some states. And the Michigan Attorney General has now indicted the Michigan GOP electors because of the actions they took.

As I watched that process unfold in 2020 (and after I learned the details of what had happened after 2020), I was actually astonished that the Trump electors, or their lawyers, were not more open about what they were doing. Some came close to saying this, but all of them should have done what they did under the umbrella of a very clear statement: They should have said, “we are voting now to preserve our vote, in the case that the results in our state change.” That statement would show the electors were not acting to create anything that would have any legal effect, unless the results in the state were reversed. Such an act would seem perfectly prudent, at least where the election in a state has not been resolved.

But the Michigan prosecution is grounded on the fact that Michigan’s results were already resolved: That the election had been certified, that there was no pending challenge to the results at the time the Michigan Trump electors cast their ballot, and so the act of creating a “backup” slate had no plausible legal justification.

I think the Attorney General is right. There is no reason for electors to cast a “backup slate” of votes unless there is a possibility such votes might be needed. Under her correct view of the law, there was no possibility such votes might be needed. So the actions of the Trump electors had no possible legal justification. Their acts thus get rendered by her as “fraudulent.”

And yet, those electors do have an obvious defense: Senators Josh Hawley and Ted Cruz. Because those senators acted as if they believed that the election was not settled. They acted as if they believed that Congress had the power to send the results of contested states back to the state legislatures. They at least acted as if they believed it was possible that the state legislatures might then flip the result. And if indeed the state legislators did flip the result, then the votes of the Trump electors would in fact be needed. So even though the election was settled, under Michigan law, on Josh Hawley and Ted Cruz’s reading of the Constitution, the election was only settled once Congress had acted on January 6.

I think Hawley and Cruz’s understanding of the Constitution to be an embarrassment — if not to the Senate, then to the two great law schools these two senators got their law degrees from (Yale and Harvard, respectively). I don’t believe that the Constitution gives the Joint Session of Congress any power to displace the settled results of a presidential election. Once the states have certified their results, the Constitution says Congress must count them.

But were I among the lawyers for the Michigan Electors, I would certainly add those two senators to my defense. Indeed, I would subpoena them to testify in the trial of these defendants and to explain to the court their theory of why, though Michigan law said the election was over‚ in fact, until Congress acted, the election was not over. Indeed, if the defendants really believed that the election was not over, because of the rhetoric of “lawyers” such as Hawley and Cruz, I’d even volunteer to join the defense team (pro bono) for the limited purpose of examining these two Senators about their constitutional views.

Because in my view, if anyone should be held to account for the outrage of the 2020 election, it is the politicians, like Cruz and Hawley and of course, Trump, who work so hard to call black white. They of course will not be held to account. Such is the justice system of America. But if Michigan’s Republican electors actually heard those words and believed them, that fact is at least relevant to their legal defense. And I certainly hope their lawyers do everything they can to make certain that fact is considered by those who will ultimately decide whether these presidential electors should be punished.

Matt Seligman and I think this — and many other similar questions—continue to haunt the presidential election. Stay tuned for our book out in January — How to Steal a Presidential Election (Yale 2024). Sadly, it is not a pretty story.