Make the Electoral College great again: let “conscientious electors” do their jobs

There has been a tremendous amount of attention in recent days on the Electoral College, whose members will meet in all 50 states to choose the next president on December 19. There are large-scale movements afoot, such as a Change.org petition, with 4.9 million people encouraging electors to vote for Hillary Clinton, the popular-vote winner, and another arguing that electors should select a “compromise candidate.” There are also organizations, such as the Hamilton Electors, encouraging electors to act independently of so-called “faithless elector” laws, and at least one lawsuit that argues such laws are unconstitutional. (It’s on appeal to the 9th Circuit.)

Given these developments, it’s time we think about how the Electoral College should really work. First, let’s retire the nomenclature of “faithless electors” once and for all. Let’s call electors who refuse to rubber-stamp the popular vote conscientious electors, and let’s give them the resources and the protection to investigate and deliberate — in short, to do their jobs.

Constitutional history makes clear that the founders had three main purposes in designing the Electoral College.

The first was to stop a demagogue from becoming president. At the Constitutional Convention, arguing in support of the Electoral College, Elbridge Gerry of Massachusetts said he was “against a popular election” for president because the people would be “misled by a few designing men.” In Federalist No. 68, Alexander Hamilton wrote that the electors would prevent those with “Talents for low intrigue, and the little arts of popularity” from becoming president. They would also stop anyone who would “convulse the community with any extraordinary or violent movements.”

The second goal was to stop foreign interference in election. In the founding period, the framers were extremely concerned about infiltration by rivals including Great Britain. In Federalist No. 68, Hamilton wrote that one major purpose of the Electoral College was to stop the “desire in foreign powers to gain an improper ascendant in our councils.” He said that the college would “Guard against all danger of this sort … with the most provident and judicious attention” from the electors.

The third goal was to prevent poor administration of government. This is a less well-known purpose of the Electoral College, but it is again expressly discussed in Federalist No. 68. Hamilton wrote that “the true test of a good government is its aptitude and tendency to produce a good administration,” and for that reason, he said, the electors should be “able to estimate the share which the executive in every government must necessarily have in its good or ill administration.”

This election has three aspects that have brought the Electoral College back to relevance.

First, Donald Trump is the first unquestioned demagogue to become a major-party nominee in our country’s history. On his quest to the general election, he stoked prejudices and passions to flout fundamental constitutional norms, such as our freedoms of the press, religion, and peaceful assembly. Second, there’s incontrovertible evidence that Russia interfered in the campaign, by hacking the email accounts of top Democratic officials and cooperating with WikiLeaks’ parallel campaign to undermine Hillary Clinton campaign. Meanwhile, Trump has business entanglements in Russia and other foreign countries, the extent to which are unknown because Trump has not released his tax returns.

And third, his opponent, Hillary Clinton, is on track to win the popular vote now by over 2.8 million votes — over five times Al Gore’s narrow margin over George W. Bush in 2000 — a factor electors ought to be able to weigh, whether or not they think it is conclusive.

All of these factors lead us directly to a renascent Electoral College

The Electoral College was designed precisely for such extraordinary instances. As Jeffrey Tulis, Sanford Levinson, and Jeremi Suri (respectively professors of political science, law, and history) recently argued in the New York Daily News, “Our Founding Fathers created what we now call the Electoral College to protect our country against the precise danger we now face: a demagogue who has manipulated and bullied voters, exploited fears and now threatens the very foundation of our republic.”

It’s true that since the Electoral College was included in the Constitution, several important developments have come to pass. First was the passage of the 12th Amendment to the Constitution in 1804, which separated the election of the president from that of the vice president, and created mechanisms to break stalemates in the voting. (This amendment partly grew out of recognition of the fact that parties rather than the Electoral College would perform the role of nominating candidates.) Second was the passage in 29 states of laws attempting to prevent electors from becoming those so-called “faithless” electors by binding them to vote for the popular vote winner.

However, even these patchwork developments can’t change the core duty of all electors under the founders’ design: to serve as a fail-safe on Hamilton’s principle that “[n]othing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”

There’s plenty of precedent for such conscientious electors. In fact, there have been 157 in our history. In 1808, for instance, James Madison was running for president on the Democratic-Republican ticket. Madison was under attack for his support of a controversial embargo, which the sitting vice president, George Clinton of New York, opposed. Tellingly, although Clinton was Madison’s running mate on the Democratic-Republican ticket, he saw himself as a viable president in the Electoral College. Six of the 19 Democratic-Republican electors from New York, all originally pledged to Madison, agreed. Those six voted for Clinton for president instead.

In 1836, Martin Van Buren was running for president as a Democrat, with Richard Mentor Johnson of Kentucky as his vice president. In that instance, there was a scandal involving Johnson and a slave mistress, leading Virginia’s 23 electors to abstain from voting for Johnson entirely. That put Johnson below the required majority in the Electoral College and kicked his election to the House of Representatives (where he was elected).

In 1976, Gerald Ford was running for president as a Republican against President Jimmy Carter. The state of Washington voted for Ford, but a Republican elector named Mike Padden voted instead for Ronald Reagan for president. He cited an elector’s constitutional right to use discretion, which meant, for him, voting for Reagan because of his position against abortion.

The US Supreme Court ruled in Ray v. Blair (1952) that states could require pledges of electors. However, the states that do have such binding laws currently enforce them only through fines or, in rare instances, criminal penalties that would be enforced after the fact. The real issue is whether a state could force an elector to comply with the popular vote. Harvard Law professor Lawrence Tribe has opined that they probably could not.

Meantime, Michael Glennon argues in his 1992 book No Majority Rules: The Electoral College and Presidential Succession that the federal legal question is “at bottom a policy-oriented inquiry” that will likely invoke what courts call the “political question doctrine” — in other words, we’re in largely uncharted waters, where courts will weigh a range of variables in making decisions rather than apply strict legal doctrine.

In the absence of clear federal rulings, state supreme court decisions suggest that state binding laws are unenforceable. For instance, the Alabama Supreme Court ruled that when the legislature attempts to “dictate to the electors the choice which they must make for president and vice-president, it has invaded the field set apart to the electors by the Constitution of the United States, and such action cannot stand.” And the Ohio Supreme Court ruled that “It is only by force of a moral obligation, not a legal one, that the presidential electors pledged to certain candidacies fulfill their pledges after election.”

These court decisions perfectly square with the founders’ intent. Hamilton said the electors should “enter upon the task free from any sinister bias.” That’s why no senator, representative, or “any other person holding a place of trust or profit under the United States” was eligible. Independent electors would be “most likely to possess the information and discernment” to stop a demagogue. They would be chosen solely for the purpose of participating in the college.

Most crucially, the electors would be “acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.”

The founders went to great lengths to ensure that the electors would be protected from manipulation. Hamilton wrote that the electors’ “transient existence, and their detached situation” should prevent them from being “tampered with beforehand to prostitute their votes.” They would “possess the information and discernment requisite to such complicated investigations.”

The electors meet in their respective states rather than in a single place, to prevent any demagogue from manipulating the electors en masse. Hamilton wrote that such an arrangement would “expose them much less to heats and ferments” than if they were “all to be convened at one time, in one place.” Their diffusion would mean it would no longer be “easy” to capture the electors, “dispersed as they would be over thirteen states.” It would prevent “The business of corruption” because “when it is to embrace so considerable a number of men, requires time as well as means.”

We can figure out what all this should look like, in 2016, by turning to other examples of people legally empowered in our country with the ability to investigate and deliberate — for example, duly elected and appointed officials, judges, prosecutors and defense attorneys, grand juries, Congressional committees, and special masters.

For instance, prior to December 19, electors should be able to request, under court order, documents and other materials from all relevant entities to inform constitutional inquiries such as whether foreign powers have interfered in our councils — for instance, by requesting to inspect Donald Trump’s tax returns.

On December 19, they should be given the resources and support by relevant state agencies to fully deliberate on the issues before them. Their meetings should be run under Robert’s Rules of Order and be open to citizens and to the media. If they are unable to conclude their deliberations on December 19, they should be able to deliberate as long as they reasonably need to make their choice.

Finally, with the track record of threats by Trump’s supporters toward anyone who questions his authority, the electors must be protected by local, state, and federal authorities from treatment that violates the law or prevents them from doing their job.

Trump supporters would no doubt argue that any conscientious elector who refused to act like an automaton and instead deliberated would be a “liberal.” But this is mistaken. There’s no more conservative principle in our country than fidelity to the Constitution as originally designed.

Modern-day conservatives favor so-called “originalist” understandings of the Constitution. They look to history and to the original texts of our founding documents for guidance. Recent decades have seen the invocation of original constitutional institutions to address present concerns, such as when the Rehnquist Court struck down Congressional laws such as the Violence Against Women Act and the Gun-Free School Zones Act on the grounds that they violated an originalist understanding of the Commerce Clause.

Whether or not you agree with such decisions, they establish the broad-spectrum appeal of our constitutional institutions — particularly in times of crisis. “Make America great again” is a clever marketing slogan. But our real greatness depends on employing our institutions and values to protect our republic from those who might prey on us.

Michael Signer is an attorney, the mayor of Charlottesville, Virginia, and a lecturer at the University of Virginia. He is the author of Demagogue: The Fight to Save Democracy from Its Worst Enemies and Becoming Madison: The Extraordinary Origins of the Least Likely Founding Father. He endorsed and supported Hillary Clinton in the 2016 presidential election.