A Republic, If You Can Keep It
If you were going to hijack the U.S. presidency, how would you do it?
C’mon, seriously, how would you do it? It’s a loaded question these days, I know, and it probably has you thinking about everything from the JFK assassination to The Manchurian Candidate. I could go on for hours about either of those, but what we’re talking about this week is something much subtler and more pernicious, something that’s been happening right under your nose. Something much sexier than JFK or Denzel Washington.
I’m talking, of course, about the Electoral College, and, more specifically, the 2016 plot to hijack the American presidential election. If you’ve never heard of it, you’re probably not alone. Most people haven’t. But it exposed to many the strange, seedy underbelly of the American general election, and the structural flaws in our democracy that have existed from the very start.
So sit back, relax, and let’s take a look at how to steal the U.S. presidency—the old-fashioned way.
The Electoral College is one of those things, like a black hole, that we’ve all heard of, even if we don’t quite understand exactly how it works. But to fully grasp the issue in this case, we’re going to have to look at the Electoral College and the mechanics of the American general election. And to do that, we’ll need to take a trip back to the late 18th century, when the United States of America was just a dream in the minds of a few dozen pompous old white guys with the same unironic haircut.
These guys…
Without further ado, let’s get started.
The Issue:
So, as you’ve no doubt heard, America is a democracy. That makes us feel all warm and fuzzy inside, because democracy is good, and everything else is bad, but in terms of description, this is just about as useful as saying the Earth is a big round thing floating in space. That’s technically true, of course, but it’s also simplistic, reductive, and it doesn’t capture anything real or essential about the Earth or what it’s like to live on it.
The same is true of describing America as a democracy.
Why is that, you ask? Well, in a democracy, power flows from the People with a capital “P” (i.e. all the citizens eligible to vote) to the Government. And in a pure democracy, the People vote and elect their leaders directly (this is also referred to as, you guessed it, a direct democracy). If America was a direct democracy, you’d be able to go down to the ballot box on that seemingly random Tuesday in November and vote for the President. Then your votes would be added to those of every other voter in the country to create a grand total, and whichever candidate got the majority of those votes would become the President.
Spoiler Alert for those of you who skipped their U.S. Government class (no judgment, I did too): this is not what happens in America. There is a grand total of all the votes cast in the American general election (you’ve heard it referred to as the popular vote), but this is not what decides the outcome of the presidential election.
No, American elections are decided by a system called the Electoral College. Unless you’ve been living under a rock for the last few decades, you’ve heard of it. That’s because in 2 of the last 5 presidential elections, the winner of the Electoral College (and thus, the election) has actually lost the popular vote.
So, where does the Electoral College come from, and how does it work?
The Electoral College is a system created by the Constitution. Article II, Section I of the Constitution reads, “[e]ach State shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” The Twelfth Amendment, ratified following the hilariously controversial presidential election of 1800, goes on to provide that “[t]he Electors shall meet in their respective states and vote by ballot for President and Vice- President . . . ; they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice- President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States.”
Ok, great, you’re probably thinking, but what does that actually mean? And when are we going to finish with the history lesson and start talking Supreme Court?
The current Electoral College breakdown.
Fair enough, let’s cut to the chase. Here’s a rundown of how the system works today: every U.S. state is required to choose a certain number of people (called electors) to participate in the Electoral College during each presidential election. The number of people that each state gets to choose is equal to the sum of the number of Senators and Representatives the state has (brief refresher: each state gets 2 U.S. Senators and a number of Representatives that roughly corresponds to their population). As a result, larger and more populous states get more electors than smaller states. California has the most, with 55, followed by Texas with 38, then New York and Florida with 29 each, and so on, down to the smallest states (by population), which can have no fewer than 3 electors. The map above shows the total number of electors for each state. As you can see, there are always 538 electors in the Electoral College, and whichever candidate wins a simple majority (i.e. more than 50%, which for you math-challenged folks equals 270) of the electoral votes becomes president.
The process generally goes something like this:
Sometime during or after Election Day, each state counts up the total votes cast for president in that state. Then, in most states, whichever candidate got the most votes simply gets all of the state’s electors. Now, the way that gets accomplished is slightly different in every state, but what normally happens is that each political party with a presidential candidate also nominates a slate of electors. In those states, each vote cast for a presidential candidate is also a vote cast for electors who have promised to vote for that candidate in the Electoral College. So, to use the 2016 election as an example, if you lived in California in 2016 and you were among the majority of people who voted for Hillary Clinton, you also voted for 55 electors who pledged to vote for her in the Electoral College. Likewise, a vote for Donald Trump in Texas in 2016 was also a vote for 38 electors pledged to vote for him in the Electoral College. In many states, those presidential electors make formal promises or pledges to vote for their party’s candidate, and some states even have laws that hold them legally responsible if they fail to uphold their promises. What this means generally is that electors have no opportunity to choose their own candidates. They’re basically just walking, breathing election machines, casting electoral votes without thinking, in favor of whoever won the popular election in their state.
If you’re thinking this is a bizarre—and possibly pointless—charade, especially with something as important as the U.S. presidency on the line, you haven’t seen anything yet.
U.S. populations per electoral vote in 2010.
You have, however, probably noticed the flaws in the system. First and foremost, the Electoral College has the potential to produce the odd scenario in which the person who got the most votes for president actually loses the election. Additionally, you might be thinking that the system gives too much power to big states like California and Texas, and not enough to the tiny (population-wise) states like Wyoming. If you’re thinking that, then you’re at least half-right. The Electoral College does put a lot of emphasis on larger states, and these are often the states that the presidential candidates focus their efforts on, but individual voting power is actually a lot weaker in those large states than in the smaller ones. Voting power is a technical term that describes the relative influence of individual votes as a function of population size and total electoral votes. If that sounds like gibberish to you, don’t worry, you aren’t alone. What it generally means is that not every vote is equal in the Electoral College system. To illustrate the point, take a look at the chart above, and look at the examples at either end. On one hand you have California, the most populous U.S. state, with 55 electoral votes. On the other, you have Wyoming, the least populous state with 3 votes. You might think voters in California have more voting power than those in Wyoming, but generally-speaking, you’d be wrong. That’s because if you take California’s population in 2010—roughly 37 million—and divide by the number of electoral votes, the result would be about 673,000, which is the number of citizens per electoral vote. So assuming every California citizen voted in 2010 (which, of course, isn’t the case), it would have taken 673,000 voters to win each electoral vote. If you did the same calculation in Wyoming in 2010, you’d get 182,500 voters per electoral vote. What that means, generally, is that if you’re a voter in Wyoming, your vote is worth almost four times more than a voter in California. This obviously isn’t a perfect figure, and there are a lot of variables (voter turnout, disenfranchised voters, the winner take all electoral system, etc.) that it doesn’t consider, but it is a good, rough estimation of voter power dynamics in the Electoral College.
Now, there are, of course, some people who support the Electoral College system. These people generally believe that it’s a core part of American federalism, and that it’s the only thing that keeps state governments involved in the presidential election. They also believe that it incentivizes candidates appeal to voters in less populated areas, which are more difficult to reach and would likely receive less attention if the nationwide popular vote was the deciding factor in the presidential election.
So people disagree, you might be thinking, so what? People disagree about literally everything these days, that doesn’t mean the Supreme Court should step in.
Well, here’s the problem. As I mentioned, the 2016 election was one of those elections in which the winner of the national popular vote (Hillary Clinton) did not become the president. There’s nothing legally wrong with that, but the election exposed an odd feature of the Electoral College system to the public eye. And that is the fact that although electors in most states pledge to cast their votes for whoever wins the popular vote, no state has ever legally required them to do so. Although many states have laws governing these so-called “faithless electors,” they are rarely, if ever, enforced.
And in Washington State (and a few others) in 2016, several of these rogue electors effectively tried to steal the American election. The majority of the voters in Washington in 2016 voted for Hillary Clinton for president, which means that all 12 of the state’s electors should have gone to her. But instead, 4 of the state’s electors voted for someone else for president (3 voted for Colin Powell, and 1 voted for Faith Spotted Eagle, a Native American activist and political leader. Neither one was a candidate for president.)
Now, this is a phenomenon that happens from time to time. In fact, as you can see from the chart to the right, the same thing also happened to Donald Trump, who won the popular vote in the state of Texas in 2016, but lost 2 of the state’s 38 electors (these two voted for Rand Paul and John Kasich, respectively).
However, the situation in Washington was particularly egregious because of the fact that the “faithless electors” in that state effectively deprived Hillary Clinton of a full 33% of the state’s electoral votes. And in response, the State of Washington became the first state ever to penalize electors for failing to uphold the pledge they took upon taking office, fining each of them $1,000.
But of course, that’s not the end of the story, because here we are, in the Supreme Court. So with all that in mind, let’s meet the parties.
The Parties:
The Petitioner(s):
This is Alexander Hamilton. In many ways, he’s the reason we have an Electoral College. As you can see, that’s not even close to the sexiest thing about him.
There are actually two cases involving this issue on the Supreme Court’s docket right now, and both involve the 2016 election. The Petitioners in this case are the faithless electors who cast their votes improperly (i.e. for Colin Powell, instead of Hillary Clinton) in Washington State, and were fined for breaching the terms of their pledge.
The small irony here is that these faithless electors are affiliated with a larger movement called the Hamilton Electors—named for one of the most vocal supporters of the Electoral College, your pal Alexander Hamilton—who were created in an effort to stop President Trump from winning the presidency in 2016 by directing electoral votes to different Republican candidates for president. The Hamilton Electors’ goal was to create a scenario where no presidential candidate received a majority in the Electoral College. If that had happened, the House of Representatives would have then elected the president.
And yet, ironically, the Hamilton Electors ultimately deprived Hillary Clinton (5) of more electoral votes than Donald Trump (2).
The Respondent:
The Respondent here is the State of Washington, which in 2016 became the first state in U.S. history to legally punish its electors for failing to vote for a majority candidate.
The Law:
You’ve probably noticed already that while the Constitution creates the Electoral College, it has very little to say about how the thing should run. All it says is that the states are required to “appoint” the “Electors,” who then “vote by ballot for President and Vice-President.” That’s it. There’s nothing in there at all about pledges or the popular vote.
So where did it all come from?
In truth, the Electoral College system has been problematic almost since its creation. It resulted in one of the great American political debacles during the election of 1800, and during the years since, more than 150 presidential electors have cast votes for someone other than the winner of the popular vote. In response, states slowly began to require that their electors take pledges to vote for the winner of the popular vote. The process began with Oregon in 1915 and continues to this day. Today, 32 states and the District of Columbia have laws on the books that require electors to take these pledges.
And in 1952, in a case called Ray v. Blair, the Supreme Court basically upheld these laws as constitutional. However, before 2016, no state had ever tried to enforce these laws with any sort of legal penalty.
Now, let’s frame the issue in general terms: both parties agree that the Constitution gives the states the power to appoint presidential electors. And both parties also agree (because the Supreme Court said so in Ray) that the states can require electors to make pledges about how they will vote. The issue though, is whether the states have the authority to enforce those pledges and thereby govern the way the electors vote.
To really understand what’s at the bottom of their arguments, we need to talk about one more thing: federalism. If you’ve taken a look at the Glossary, then you already understand what federalism is all about.
Let’s take it a step further and talk briefly about the history.
The United States is somewhat unique in that before it was a unified country, it was a loose collection of independent states. Each of these states had their own rules and customs and traditions. For example, you probably remember from your early history classes that there was a deep ideological divide between the two main colonies upon which the country was founded: the stuffy old Puritans in Massachusetts and the venture-capitalist Jamestown Colony around Virginia. We don’t have to talk about all those ideological differences, and of course, things looked very different by 1788 when the U.S. Constitution was ratified, but we do have to acknowledge that each of the early American states had its own views and each one was very concerned protecting its own way of life.
A scene from the Constitutional Convention (1787), where the U.S. Constitution was drafted and signed.
Following the American Revolution, when the Founders were debating and developing the system of government that was going to run the country, one of the major issues up for debate was the way the states were going to interact with the central government. The simplest solution, of course, would have been to just get rid of the states altogether, and to simply have one centralized government in control. The individual states and their representatives were largely opposed to that idea, fearing that such a government would be susceptible to corruption and would result in a single set of values being applied to all the states. The Founders essentially settled on a compromise, a new form of government in which power was shared between the federal government and the governments of each of the states. It wasn’t exactly an equal partnership though. The new federal government was more powerful than the government of any of the states, though those states retained their own areas of influence that the federal government was not allowed to touch. The arrangement was written into the Constitution, in the form of various clauses and amendments.
If we wanted to spell out the arrangement at a general level, it would probably look something like this:
“1. The federal government is independent from the government of any of the states. (Article I of the Constitution).
2. Federal law is “the supreme Law of the Land,” meaning that it applies in all the states and it generally trumps state laws when the two come into conflict. (The Supremacy Clause of the Constitution).
3. The federal government has all of the powers enumerated (which is a fancy, lawyer-y word for “written”) in the Constitution, including the power to regulate Commerce in and among the states, the power to tax and spend, and the power to declare war. (Again, Article I).
4. The state governments have power over everything else, all of the powers that were not enumerated or given to the federal government by the Constitution. (These are called “reserved powers,” and they’re governed by the Tenth Amendment).”
Now, there are a couple of things worth noting here.
First, while the balance of power in the early days of American history was mostly even (or maybe even in favor of the states), it has swung dramatically in the other direction over the last 200 years. Now, the federal government possesses much more rule-making power than any of the states. This is largely the result of the expansion of the Commerce Clause and the recognition of Congress’ unenumerated powers. Those are fascinating subjects, but if I get into the weeds on them, we’ll be here all week. As always, check the Glossary if you’re interested.
Second, the way the system exists now almost ensures that while the federal government can intervene on the states whenever it wants to, the states can very rarely intervene on the federal government or its federal functions.
So that’s the general outline of where we are now. It was a lot to digest, I know. Don’t worry, there’s no quiz or anything, but try to keep it in mind as we turn to the arguments made by each party.
The Electors:
Seriously, don’t make me go there…
At the outset, we should recognize that since this is a case involving the Constitution, a large percentage of the textual argument on both sides is going to be about the way people in 1787 would have understood the words the parties are arguing about. Now, I could take you down the rabbit hole, through eighteenth century legal dictionaries and William Blackstone’s pompous ponderings, but between you and me, I don’t think that’s the best use of our time. The reality is that in cases like these, there’s normally some valid textual argument on both sides, and the difference of opinion largely depends on the dictionaries you choose and the sources you read. So with that said, let’s acknowledge the textual argument, touch on it briefly, and agree that while we could spend our time combing through 200 year old dictionaries, we just don’t want to.
In this case, the words we’re concerned with are “vote,” “elector,” “appoint,” and “vote by ballot,” as those terms appear in Article I. The Electors are going to argue that these terms all convey some notion of choice, and that penalizing presidential electors from exercising that choice is unconstitutional. The State of Washington, meanwhile, is going to argue that opposite—that from 1787 on, the commonly accepted understanding of those terms and of the Electoral College generally, was that the states could, and even should, require presidential electors to vote for whoever won the statewide popular vote.
Ok, good. Now, with the textual stuff out of the way, we can move on to some more interesting arguments.
First of all, we should note that the Electors’ essential argument here is that although the Constitution gives the states the right to appoint presidential electors, there’s nothing in Article I that gives states the right to control the electors or their votes. In their view, the power to appoint does not equal the power to control. Think about that. Does it ring true in your experience? I’d suggest that there are a lot of contexts where it probably doesn’t. Try telling your boss that just because they hired you, that doesn’t mean they have the right to fire you. See how that goes over. The same general principle applies to your doctor or your lawyer or your cable company, as a few examples. There may be contractual limitations in place (especially with your cable company), but generally your decision to hire them also includes an implicit power to direct them and to fire them if you don’t like the job they’re doing.
So, how can the Electors argue the opposite? Well, there are a couple of very prominent legal examples of scenarios in which this ordinary arrangement is reversed. The most common example is the office of federal judge. Federal judges are appointed by the U.S. president, and if confirmed, they serve in that position for life. They aren’t subject to removal from office, except under extraordinary circumstances. So that’s a position in which the power to appoint does not equal the power to control. The president gets to appoint a federal judge, but theoretically, that’s where the president’s power ends. And the Electors are of the opinion that the job of presidential elector is like the job of federal judge, in that once the state appoints an elector, that’s where the power ends. Now, the Constitution doesn’t specifically say anything like that, which is important to note. We’ll come back to this argument in a minute.
For now, let’s talk a bit more about federalism. By now, you know all about federalism, and if you were paying attention, you remember what I said about the relationship between the state and federal governments. That relationship can generally be summed up like this:
“In any area where it’s allowed to operate, the federal government reigns supreme over the government of any state.”
That arrangement is the result of something called the Supremacy Clause, which appears in the Constitution and states that federal law is “the Supreme law of the land.” Now, let’s take the above arrangement and flip it around, which gives us something like this:
“The government of any state is not allowed to interfere in an area where the federal government is operating. ”
Nuclear power is a common example of a federal function.
That there is a very basic statement of the federal function doctrine, which basically says that states can’t interfere with property or functions that are exclusively federal. So what sorts of property and functions are “exclusively federal,” and how does that rule apply here? Well, exclusive federal functions are often described in terms of “enclaves,” which is just a fancy way of describing locations (both physical or legal) where there might be conflict if state and federal governments were both operating at the same time. Examples include: federally-owned nuclear power plants, federal property (i.e. National Parks), and processes or standards imposed by federal law. The federal function rule exists to prevent areas of exclusive federal control from being intruded on by state governments.
I bring this up because one of the petitioners’ main arguments is that the casting of a vote for president by a presidential elector is a “federal function” that the state governments cannot intrude on. If that’s the case, then the State of Washington can’t fine the electors or impose any sort of sanction. In fact, if casting a vote for president is a federal function, then this case is pretty much over, and the State of Washington loses. But how do the petitioners get there? Well, there are two main pieces of this: first, that the electors authority comes solely from the U.S. Constitution, which is the most important piece of federal law; and second, that casting a vote for president is effectively choosing who ends up leading the federal government. Again, keep this argument in mind and we’ll touch on it again in a moment.
So all of that was legal argument. Let’s turn briefly to a more practical argument, one that’s been at the bottom of everything we’ve talked about so far. In sum, the electors’ main rhetorical argument is that if you let the states fine or sanction electors from voting for whoever they want, you’re letting the state governments directly control who becomes president. Think about that. Does that fit with what we’ve discussed about the Electoral College? Well, in a literal sense, it’s accurate. If the states can make the electors vote for a particular candidate, then they can influence the election and theoretically take the electoral power away from the People.
Ok, you might be thinking, but if the rule is that the electors have to vote for whoever the majority of the People voted for, then it’s not really depriving the People of voting power, is it?
Well, maybe not right now, but one of the concerns underlying this issue is what would happen if the states were allowed to totally control their presidential electors. Could a state, for example, make it so that any presidential elector could only vote for the candidate of one party? Probably not. But could a state only allow its electors to vote for a candidate who has made his/her tax returns public (this is a real proposed law in the state of New Jersey)? I don’t know the answer to that one, but it’s an important question to consider, because these sorts of laws are going to affect the way your vote gets cast by electors in future elections.
There’s one more thing I want to mention here, and that’s public opinion. Generally, courts operate under the assumption that the only things that matter in a particular case are the facts and the law. Public opinion doesn’t come into the equation. And yet, most of the huge landmark Supreme Court decisions in the last century have come around only after a momentous shift in public opinion about a certain issue. Would we have gotten Brown v. Board of Ed. without the general public consensus that racial discrimination was intolerable? Doubtful. Would we have gotten Gideon v. Wainwright without general agreement that people accused of crimes are entitled to legal representation? I’d say probably not. It’s disingenuous to say that public opinion never affects the Supreme Court.
And here, public opinion is very clearly against the petitioners. Over the years, dozens of states have passed the sort of laws that Washington has, and there’s never been a problem. And you can see why, right? We all want to know that our vote for president is going to count for something. If you lived in Washington in 2016 and you voted for Hillary Clinton, how pissed would you have been to find out that your vote didn’t go to her, and instead went to someone who wasn’t even running for president? And if you voted for Donald Trump, wouldn’t you still be pissed by the mere possibility that your vote could have gone to someone other than him?
All of that is to say that a lot of people have a lot of very strong opinions (as people do these days) about the way the Electoral College should run. That said, the Electors’ point is that the Constitution is the sacred text of our country, and it can’t be amended by public opinion. Just because we all want the law to say one thing, doesn’t mean that’s what it says. And if the Constitution doesn’t give the states the power to control presidential electors (and they say it doesn’t), then that’s the end of story until the Constitution is amended.
The Respondent:
We’ve already glossed over the historical, textual argument, so let’s return to the debate over whether the power to appoints equals the power to control. As I mentioned before, Washington’s position is that it almost always does, and that when it doesn’t, the law is normally very explicit about that fact. So to return to the example of federal judges, Washington agrees that they are an example of a scenario where the power to appoint does not include the power to control. But that’s only because a separate constitutional provision (Article III, Section 1) says that federal judges serve for life. This provision wouldn’t be necessary if the power to appoint did not include the power to control. As a result, federal judges aren’t a compelling example, according to Washington, they’re the exception that proves the rule.
What do you think? Does the power to appoint include the power to control? What about the power to sanction or discipline? What other sorts of examples are there for either side?
Now, let’s turn to the federal function argument we discussed earlier. Washington’s position is that the casting of electoral votes isn’t a federal function at all, but a state function. If you look at the passages from the Constitution cited above, you might notice that there isn’t any mention of the federal government at all. The states appoint the electors pursuant to their own policies and criteria, and then the electors (normally) vote in line with the citizens of the state. There’s nothing federal about that function. And what’s more, Washington notes that the purpose of the federal function doctrine is to prevent the states and the federal government from coming into conflict. So to use the example I mentioned above, the federal function doctrine has (oddly) come up a number of times in the context of federal nuclear power plants. The federal government obviously wants to regulate these, because they’re federal property. The states want to regulate them too, because they’re potentially dangerous and they’re installed on state land. So in cases, like that, there’s conflict between the two, and the conflict is typically resolved by the federal function doctrine and the Supremacy Clause, which state that the federal regulations trump state law. In this case though, the federal government isn’t regulating state presidential electors at all. Only the states are doing that. So there’s no conflict between the two governments and thus no need for the federal function doctrine.
As before, let’s end with a few practical arguments. The first one is simple. If the law already says that requiring pledges from electors is ok (and it does—remember Ray), then why is it wrong to enforce them? This makes some logical sense, right? After all, what’s the point of having a law that can’t be enforced? Would you follow the speed limit if you knew you’d never get a speeding ticket? Washington’s point is that the Electors are basically asking the Court to approve an honor system for presidential electors, where those electors take pledges prior to entering office, but then don’t face any consequences if they break them. But is the honor system enough, especially when the presidency is on the line? And that’s saying nothing of all the other laws that apply to presidential electors, like the laws that require electors to reside in the state in which they’re voting. Only seems fair, right? But if the pledge laws can’t be enforced, then it’s possible that that law can’t be enforced either, which could be problematic for the states.
Yeah, sure, but which electors did you vote for?
But the big picture for you and me is that this case is really about our individual right to vote. And Washington’s point is that if the presidential electors can vote for whoever they want, then our individual votes don’t mean a thing, do they? I mean how would you feel if you went down to the ballot box in November, voted for your candidate, and then later found out that your candidate won the popular vote but didn’t get the votes that actually matter for the presidency. You’d be pissed, right? And that’s not even taking into account the more nefarious possibilities that could arise. What if, for example, it turned out that one or more of the presidential electors was bribed or extorted into voting for a particular candidate in an effort to manipulate the election. Shouldn’t there be a way to sanction that elector and remove their vote? Probably, but if Washington’s pledge laws can’t be enforced, it makes the task that much harder.
That’s all I want to say about the parties and their arguments. As always, if you want to know more, check out the briefs, or head over to Oyez.org to listen to the oral arguments. Otherwise, stick around and let’s run down some talking points.
Talking Points:
This case is about your right to vote, but indirectly. Nothing here is going to take away your vote, but it might affect the way your vote actually gets cast when it matters.
The popular vote isn’t what we’re talking about here, because the popular vote doesn’t elect the president, at least not directly.
The Electoral College elects the president, but the people who serve as electors are normally required to follow rules about whom they are allowed to vote for.
Generally, those rules require them to vote for whoever won the popular vote in their state.
Thus, oddly, the popular vote does end up mattering, though not in the way you might think at first glance.
The Electoral College potentially creates a number of strange realities in American politics:
It allows for situations where the person who wins the popular vote does not win the election and become president.
It also dilutes voting power in the most popular states, such as California, Texas, and Florida, and increases voting power in less populous states like Wyoming and Vermont.
On the other hand, the Electoral College serves some important purposes:
It preserves the balance of federalism by maintaining some role for the state governments in the presidential election. If there were only a general election, state governments would play no role in the electoral process.
It incentivizes candidates to campaign in less populous, less urban areas, which would likely be too inefficient under a general election system.
What do you think? Are you in favor of the Electoral College, or against it?
Since it’s created by the U.S. Constitution, if we wanted to disband the Electoral College, we’d need a Constitutional Amendment, which can generally only be passed by a supermajority (two-thirds) of votes in the House and Senate, and then must be ratified by 3/4 of the states.
Is that likely? Does the Electoral College serve any particular party or interest group more than any other?
The issue in this case is whether states can penalize presidential electors for breaking the pledges they make when taking office.
Those pledges are legal, but until 2016, no state had ever tried to enforce one.
What do you think? Should the Electors be sanctioned for breaking their pledges? Do we want presidential electors to be able to vote for whoever they want? What’s the point of a pledge that can’t be enforced?
Why This Case Matters to YOU:
Pretty straightforward this time around—not much to see here. If you’re a member of the voting public and you regularly exercise your right to vote, then you probably have a lot of strong opinions about the direction of the country and the right person to lead it. You express those views by voting in the general election (and by angry social media posts, of course). But what if you discovered that your vote didn’t actually go to your candidate of choice? What if you discovered that it actually went to a state-appointed bureaucrat, who had promised to cast his/her vote for the most popular candidate? How would you feel? Would you trust that faceless person to cast their vote appropriately? Should they be punished if they failed to do so?
To take the issue one step further, how do you feel generally about a system in which it isn’t your vote that directly elects the president of the country? These are very important questions. They are going to quite literally shape the next chapter in American democracy, and they’re all implicated in this case. I probably don’t even have to tell you why you should care about this case, because by this point, I’m sure most of you already do.
That’s it for this week. What do you think? Did I miss anything? Was I snarky enough for you? Sound off in the comments or shoot me an email using the contact page. You can also follow the blog on social media using the links at the top of the page. And don’t forget to sign up for the newsletter to keep on top of all the upcoming posts and Supreme Court news.