On the Ethics of Electors
by Lawrence Lessig (Harvard University constitutional law professor)
First published in The Daily Beast, 13 December 2016
In less than a week, in 51 locations around the country, and for the 57th time in our history, electors will cast their vote for President.
Yet notwithstanding 224 years of history, to this day, there is a profound misunderstanding about the law and norms that govern their decisions.
This confusion rests upon a failure to distinguish between the legal obligations that electors live under, and the moral or ethical constraints that must guide their vote.
Legally, or better, constitutionally, electors are free to exercise their “independent and nonpartisan” judgment, as Justice Jackson put it, however they wish.[1] No state law can tell a presidential elector how he or she must vote, any more than a state law could tell the “electors,” as the Constitution describes them, who select Congress (i.e., we voters) how we must vote. The Constitution sets the requirements for an elector; federal law regulates how electors act. Those are the only legal requirements that may, constitutionally, constrain an elector. Thus, on December 19th, by (what should be a secret) ballot, an elector can vote however he or she wishes, without fear of any legal consequence.
But to say that an elector is free legally is not to say that she is free ethically. Because while the Supreme Court has indicated that an elector cannot be punished for voting one way or another, the Court has permitted states to impose moral obligations on electors. An elector can be required, as a condition of becoming an elector, to make a pledge to one candidate or another. That pledge creates obligations, and those obligations cannot, in good faith, be ignored—at least without good reason. And even if they are ignored, there remains a difficult question—who then should the elector select?
There is now an historically unprecedented effort to convince electors that they have a sufficiently strong ethical reason to vote against Donald Trump. Those reasons range from the weak to the very strong.
Among the weakest is the argument that Trump is just unfit to be President. I get this argument. It is something I myself believe. But despite the certainty with which this claim is asserted by many, at least 62 million Americans disagreed with it by casting their vote for Trump. This fact has enormous moral force within a democracy. And whatever the electors were meant to be originally, we cannot today recognize them as our moral or democratic guardians, charged with second guessing what the American people have said. Against the background of that strong democratic principle, this reason alone is not enough to justify violating an oath to support Donald Trump.
Much stronger is the concern that Trump’s refusal to disentangle himself from foreign assets — and, what should be even more concerning, foreign debts—renders him unavoidably in violation of the Constitution’s Foreign Bribery Clause. Richard Painter, a Republican, and former ethics czar for President Bush, has made this case most forcefully. Trump cannot keep assets which create an ongoing risk of influence peddling by foreign governments or foreign nationals. He especially should not be liable in debt to foreign banks or governments — as his companies reportedly are to Deutsche Bank for more than $300 million. We need a President who is independent of personal interests that might affect his presidential judgment—for the same reasons Trump was right early in the campaign to complain that SuperPACs compromised the independence of his opponents. That independence is what the Constitution seeks through the Foreign Bribery Clause. Trumps refusal to comply with its restrictions is plainly reason enough to reject him.
Likewise with concerns about Russian involvement in the elections. The Russians have acknowledged “contact” with the Trump campaign during the election; the CIA has concluded they actively interfered in the election to try to turn the results towards Trump. Whether or not one can prove that their involvement is actually responsible for the 80,000 votes in the 3 states that turned the winner of the popular vote into the loser of the election, an elector could well reason that we should have zero tolerance for any such interference. And when there is evidence of collusion or conspiracy between a campaign that has been benefited and a foreign government, an elector could well reason that his vote should be withheld from that colluder. This again would justify a vote against Trump.
And likewise, finally, with the concern that the winner by far of the popular vote will be denied her victory only because of a system for aggregating electoral college votes that denies equal weight to each citizen’s vote. The “winner take all” rule for allocating electoral college votes (and not required by the Constitution) radically skews the voting power of citizens, based simply upon where they live. That skew is inconsistent with the constitutional principle of one person, one vote. An elector could well justify a decision to deviate from his or her pledge and vote against Trump based on this more fundamental constitutional ideal.
Each of these three stronger reasons points to facts that did not exist, or were not apparent, on November 8. For an elector to base her decision to violate her pledge on one of these reasons would thus not imply that he or she knows more than the voter who elected him or her. It would instead be a perfectly and democratically justifiable exercise of precisely the judgment the Constitution secures to electors—to confirm or not the results of the popular election.
Yet there would still remain the question:
for whom should such an elector now vote? Does the judgment, “I cannot in good faith support Trump,” mean the elector is free to vote for whomever she wishes?
There is a strong argument — and I believe, ultimately, this is the correct argument—that if an elector cannot vote for the candidate to whom she is pledged, she ought to vote for the next best candidate among those the public actually voted for. That candidate is Hillary Clinton in every state, and especially the three swing states that ultimately decided the result. And it is my view that an elector unable to support Trump has an ethical obligation to vote for Clinton.
Yet it is the most strikingly depressing truth about our current time that partisanship renders this choice almost unthinkable. We have entered the age of “party over country,” which makes the very notion of a Republican elector voting for a Democratic candidate impossible. One would have thought that after an election, recognizing the candidate who received the most votes would not be a partisan act, but a factual acknowledgment. But that’s not how the electors apparently view their role. They, partisans, feel themselves committed as partisans, forgetting that they are actually citizens first.
This reality has led some Democratic electors to try to work out a deal. The “Hamilton Electors,” as they’ve called themselves, are working to persuade Trump electors to join them in voting for John Kasich. If at least 37 Republicans join, then the election would be thrown to the House of Representatives. And with one vote per state, the House would select the President from among the three top vote-getters. Mortally wounded by an electoral college defeat, these Hamilton Electors hope that choice would not be Trump.
From the standpoint of high principle, and electoral college ethics, this is a hard move to justify. Clinton electors have no good faith reason not to vote for Clinton. Electors defecting from Trump, in my view at least, have no justification for voting for anyone except someone the public has actually voted for. And moreover, the electoral college was expressly designed to avoid just this sort of collusion. The Framers thought making electors vote on the same day in different states would make it impossible for them to coordinate. Add twitter and email to the list of things the Framers just did not get.
Yet from the perspective of practical politics, this grand compromise is making more and more sense. If there are 37 electors who cannot in good conscience support Donald Trump, they should at least give the House of Representatives the opportunity to choose a candidate who might unite a nation fractured by a bitter and divisive campaign. That candidate would need to be a Republican. Ideally, the college would also give the Senate the chance to select a Democrat for Vice President. This split ticket might unite America over the next four years, and possibly avoid a spiral into civil war.
This is not how it should be. We should have a system for electing our President that counts all votes equally. We don’t. We should not have a system in which electors think about strategic voting. We do. And months after a vote, we should not still be wondering who our next President will be. As many still are. But in the face of bitter and violent clashes, it may well be time once again for an extraordinary intervention by Congress. But unlike the intervention that spurned Andrew Jackson and Samuel J. Tilden, this time it would be pushed not from the top down, but from an incredible swell of energy coming from the bottom up. If the winner of the popular vote cannot be President, maybe it’s right that the loser shouldn’t be either.
At least this the conscience of the electors could decide.
[1] Judge Wiley Daniels has denied an injunction in a Colorado case which had tried to establish the freedom of electors. He has not yet issued an opinion justifying his conclusion. Stay tuned.
