At a time when the daily news cycle reliably delivers a fresh source of mortification for most Americans, some moments of shame are stinging and acute. The United States is now seeing a steady rise in coronavirus cases even as less wealthy and less powerful countries have kept the pandemic in check. Many Americans spent almost three months in lockdown only to see their sacrifice squandered by diffident and incompetent leaders. State and federal officials wasted valuable time to ramp up testing capacity and contact-tracing programs and provided only meager economic assistance to those affected. President Donald Trump is personally indifferent to the nation’s plight. He spends much of his days watching cable news and posting racist outbursts on Twitter.
Other national embarrassments are more subtle and simmering. Take, for instance, the Supreme Court’s ruling on Monday in Chiafalo v. Washington. Three Washington state residents who served as electors in 2016 sought to quash the fines they received after breaking their pledge to vote for Hillary Clinton in the Electoral College. The Constitution’s framers, they argued, expected that electors would exercise some independent judgment when casting their ballots and that the states couldn’t interfere with that responsibility.
Fortunately for American democracy, the justices unanimously disagreed. They instead held that states have broad power to regulate and punish their electors. “Washington’s law, penalizing a pledge’s breach, is only another in the same vein,” Justice Elena Kagan wrote for the court. “It reflects a tradition more than two centuries old. In that practice, electors are not free agents; they are to vote for the candidate whom the state’s voters have chosen.” Justices Clarence Thomas and Neil Gorsuch concurred in the outcome but said they would have decided the matter on Tenth Amendment grounds instead.
The ruling is a significant defeat for activists, led by Harvard University law professor Lawrence Lessig, who sought to undermine the Electoral College by encouraging its members to vote their conscience despite the results in their state. In 2016, Lessig offered free legal assistance to electors in a last-ditch effort to fend off Trump’s election as president. Though Lessig claimed at least 20 Trump electors could break ranks, the actual vote saw only two electors assigned to Trump vote for someone else. And in an ironic twist, Hillary Clinton ultimately lost more votes to faithless electors than Trump did.
But the unanimous decision is an even greater defeat for the Electoral College itself. Since its creation, proponents have argued that its members could serve as an enlightened body of supercitizens who could provide the final, vital check against the installation of a corrupt or authoritarian president. The electors—acting independently of Congress, the states, and even the people themselves—could be trusted to choose the nation’s head of state. While the 2016 election already disproved that argument, Monday’s ruling foreclosed it altogether.
The decision is remarkable for its skeptical approach to the Founders’ vision. When interpreting the Constitution, judges often look to contemporary sources from the era to understand how its provisions came about and what its creators hoped to achieve. Foremost among those sources are the Federalist Papers, a series of pseudonymous essays by James Madison, Alexander Hamilton, and John Jay. The essays played a crucial role in New York’s ratification debates and offer valuable insight on the framers’ aspirations.
On the Electoral College, their vision was clear. Jay, writing in Federalist No. 64, argues that the mechanism will ensure that only the finest citizens can elect the president. He anticipated that the Electoral College would be “composed of the most enlightened and respectable citizens,” who would only consider those who were “most distinguished by their abilities and virtue” as presidential candidates. The age restriction, he added, “confines the electors to men of whom the people have had time to form a judgment, and with respect to whom they will not be liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”
In Federalist No. 68, Hamilton wrote that the mechanism was consciously anti-democratic in its conception. He explained that it was preferable that the “sense of the people should operate in the choice” of the president, but that it was also “peculiarly desirable to afford as little opportunity as possible to tumult and disorder” from the masses. “The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes,” he explained. Requiring them to vote in their respective states, Hamilton added, would “expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.”
Their efforts to constrain the popular will proved to be shortsighted. “The problem is that the Electoral College has never worked as Alexander Hamilton claimed it would,” The New York Times’ Jesse Wegman, who wrote a book on abolishing the Electoral College, wrote earlier this week. “National political parties developed within a few years of the Constitution’s ratification, and electors quickly joined one team or the other. By the middle of the 19th century, the existence of partisan electors was so established as to be taken for granted. Justice Joseph Story wrote at the time that any elector’s effort to exercise ‘independent judgment would be treated as a political usurpation, dishonorable to the individual, and a fraud upon his constituents.’”
Accordingly, the justices are unusually willing to ignore the Founders’ purported wisdom on this matter. Kagan, writing for the court, noted that the founding generation only held one contested presidential election, in 1800, under the original Electoral College mechanism before passing the Twelfth Amendment to rework it. Early Americans wrested away even more control over electing presidents from state legislatures that declined to hold a popular vote, a method that persisted in some places until 1832, and their descendants have fought to expand electoral participation ever since.
Kagan traced these problems to the framers’ haste in Philadelphia, which belied the confidence shown by Jay and Hamilton in defending the proposed mechanism.
Our Constitution’s method of picking Presidents emerged from an eleventh-hour compromise. The issue, one delegate to the Convention remarked, was “the most difficult of all [that] we have had to decide.” Despite long debate and many votes, the delegates could not reach an agreement. In the dying days of summer, they referred the matter to the so-called Committee of Eleven to devise a solution. The Committee returned with a proposal for the Electoral College. Just two days later, the delegates accepted the recommendation with but a few tweaks. James Madison later wrote to a friend that the “difficulty of finding an unexceptionable [selection] process” was “deeply felt by the Convention.” Because “the final arrangement of it took place in the latter stage of the Session,” Madison continued, “it was not exempt from a degree of the hurrying influence produced by fatigue and impatience in all such Bodies: tho’ the degree was much less than usually prevails in them.” Whether less or not, the delegates soon finished their work and departed for home.
Anyone who’s spent too long in a meeting-that-should-have-been-an-email can sympathize with the framers’ situation, especially in a muggy Northeastern city before air conditioning or more breathable clothes were invented. But it’s still striking to see a broad ideological coalition on the high court, which regularly expounds upon and draws from the framers’ wisdom in other cases, so readily disregard it in this one. The result is a presidential election system that bears virtually no resemblance to the one its creators intended but is much closer to what Americans today have rightly come to know and expect.
So what’s left of the mechanism itself after Chiafalo? Shorn of any higher aspirations toward the common good, shackled by the American people’s desire for self-government, the Electoral College now exists only to thwart the popular will through mathematical trickery. At best, it’s a perfunctory middleman in the popular election of a presidential candidate. At worst, and all too often, it only becomes relevant when it deprives Americans of their right to elect a president at all. Of the five people who received the most votes in a presidential election in my lifetime, only three of them actually became the president of the United States. Those who might be willing to defend the mechanism on other grounds cannot defend it on this one.
Americans will spend the long, hot summer of 2020 grappling with all the ways in which this country has been humiliated and shamed by its leaders. We should also reflect upon the deeply flawed source of those leaders in the first place. The Electoral College itself is an embarrassing relic by international standards. Citizens in other liberal democracies can elect their leaders in every election; Americans only get to elect their presidents in some elections. By saving the Electoral College from sabotage and self-destruction, the court has helped make the case for others to take up the sledgehammer.