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It may be, as Ian Millhiser says, that the Founding Fathers established the Electoral College because information about national presidential candidates was “not readily available to the masses” in the 18th Century. Alexander Hamilton felt this problem could best be solved “by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation.” The main point was that people couldn’t make an informed decision about who would make a suitable leader if they weren’t familiar with the candidates. Each state would choose a delegation of informed citizens to make that decision for them.

They were other advantages, too. Because the Electors would meet in their own individual states and would not form a permanent body, it would be much harder for foreign powers to influence them or for Congress to exercise control over the president. What’s clear, however, is the people were supposed to vote only indirectly for president. This is also how we voted for senators before the 17th Amendment went into effect in 1913.

The Electoral College’s basic structure has never been amended, so we technically still vote delegates to the Electoral College rather than for presidential candidates, and those delegates are supposed to be free to vote however they want. For Millhiser, this is a problem because it runs contrary to what people expect:

In 2020, the American people expect presidential electors to behave like robots, voting uncritically for whoever their state supported in the election. Members of the Electoral College are typically unknown, and their names rarely appear on any ballot. They possess none of the social capital Hamilton attributed to them.

Of course, it’s not unusual for Electors to exercise their own judgment. There have been twelve presidential elections in my lifetime, and there have been’s faithless Electors in six of them. Most recently, three of Hillary Clinton’s delegates voted for Colin Powell and one each voted for Elizabeth Warren, Bernie Sanders, and Faith Spotted Eagle. Donald Trump lost one of his Texas delegates to John Kasich and another to Ron Paul.

In addition, three other electors attempted to vote against their pledge, but had their votes invalidated. In Colorado, Kasich received one vote for president, which was invalidated. Two additional electors, one in Maine and one in Minnesota, cast votes for Sanders for president but had their votes invalidated; the elector in Maine was forced to cast a vote for Clinton, while the elector in Minnesota was replaced by one who cast a vote for Clinton. The same Minnesota elector voted for Tulsi Gabbard for vice president, but had that vote invalidated and given to Tim Kaine.

For Millhiser, giving the Electors this discretion is a recipe for chaos, and he’s hoping that the Supreme Court will rule in two cases they will hear next week (Chiafalo v. Washington and Colorado Department of State v. Baca) that faithless Electors can be prohibited.

Imagine that, when the votes are finally counted in the 2020 election, former Vice President Joe Biden squeezes out a narrow victory in the Electoral College. Then imagine that, weeks later, the nation is shocked to learn that President Donald Trump will receive a second term because a few previously unknown members of the Electoral College refused to vote for Biden…

…The legitimacy of a president flows from more than just formal constitutional rules, it flows from a sense that the president was chosen in a fair and non-arbitrary process. Governments, as the Declaration of Independence proclaims, derive “their just powers from the consent of the governed.”

There is no good answer to the question of whether faithless electors are permitted, at least as a formal legal matter. But if the justices choose to allow them, they are potentially endorsing chaos.

Millhiser says there is “no good answer” to the question, but he’s wrong. There’s really no basis for taking away discretion. If we want robots we can rely on computers to tabulate our votes and there is absolutely no reason to have some in-between who is compelled to cast their vote on our behalf. The solution is to amend the Constitution, but a better option than binding delegates would be either to go straight to a national popular vote, or to use 51 popular votes from the states and the District of Columbia. As long as the Electoral College exists in its current form, the Electors are there to exercise their personal judgment.

If things remain the same, the solution is to start educating people about how presidential elections actually work. Delegates should run campaigns and explain their first preference and any rationale they might use to vote for someone else. For example, they could say that they are a Biden delegate but if anything comes up that leads them to question his fitness after the election and before the inauguration, they will cast their vote for Elizabeth Warren or maybe Faith Spotted Eagle.

It may sound like I’m joking, but I’m not. The entire point of discretion is that it is sometimes needed. In 2016, evidence emerged between Election and Inauguration Day that Russia had intervened extensively in the election to assist Donald Trump. That was a legitimate reason that the Founding Fathers would have understood for a Trump-pledged Elector to choose someone else. Evidence of criminal activity, divided loyalties or even mental or physical unfitness can all be reasonable grounds for an Elector to be “faithless.”  I argued at the time that the Electors should exercise that discretion.

What people expect is that the winner of the most votes will become president, but that didn’t happen in 2000 or in 2016. The 2000 election is in its own category because Al Gore should have been awarded Florida and won both the popular vote and the Electoral College. But in 2016, Trump ran and won according to the rules in place, so the source of his illegitimacy is not constitutional but legal. He sought and accepted foreign assistance, and he committed campaign finance violations.

There is a problem with what people expect not matching how things work or how they turn out. That can cause them to feel an election is invalid and their will has been thwarted. There are ways to address that that don’t involve making baseless Supreme Court decisions.  If we want to get rid of the Electoral College, people need to be educated about how it really works, and it may take an invalid election and a lot of chaos to get the political momentum for a constitutional change.

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