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Why Are Non-Originalist Professors Ignoring Non-Originalist Arguments for Binding Electors?

Larry Lessig, Geoff Stone, and other law professors have called for the electors on the Trump slate to abandon him and so throw the election into the House of Representatives. They argue that the electors have this constitutional right even in the face of state statutes that forbid them from doing so, because the Framers gave electors the power of discretionary selection. They are empowered to use their own judgement and are not tied to the views of those who selected them.

I agree that electors have the constitutional right to vote for whomever they choose for the reasons that my friend Robert Delahunty brilliantly provides in a recent essay. I do not agree, however, that it would be prudent to do so. Indeed, if the objective is to prevent a Trump presidency, the exercise is a pointless one. Republicans control 31 state delegations in the House and almost every Republican member from those states comes from a district Trump won. It is inconceivable that there would be a House majority for anyone else, particularly so late in the transition process. Indeed, a cynic might conclude that the objective of throwing it to the House is to draw out the acrimony over the election, make Trump less legitimate, and yoke House Republicans more closely to his presidency in case of its failure.

And, unlike Delahunty, those who are arguing for the discretion of electors are generally not originalists. And this raises questions about the consistency and neutrality of their jurisprudence. Living constitutional, historical practice, and pragmatic arguments all cut against permitting electors the discretion that the original meaning confers.

Begin with Progressive living constitutionalism. The arc of progress has made the nation ever-more democratic, distancing us from our more oligarchical past. The right to vote is one of our most sacred constitutional rights. To permit electors who were not on the ballot and whom citizens cannot even name to cast votes contrary to the wishes of those who selected them for the single purpose of voting for a President who was on the ballot is a massive disenfranchisement. Even the Framers would want to translate the functions of the electoral college to fit with our more democratic age.

The historical practice also disfavors electoral discretion. Throughout the past century the overwhelming majority of electors have voted for their candidate and the occasional elector who does not has been consistently labelled “faithless.” More and more states have enacted statutes to prevent such faithlessness, showing that history has glossed away any claim of elector discretion.

The pragmatic arguments may be the strongest of all. If elector discretion is permitted, when the electoral count is close, the nation could see attempts to persuade electors by both major party candidates to give them an Electoral College majority and so resolve the election. Inducements, like positions in the administration or future changes in the law, may well be used. Such a struggle might well cripple the President who is elected, much like the “corrupt bargain” of 1824 undermined John Quincy Adams. The weeks of uncertainty and jostling during a time that is supposed to be devoted to a peaceful transition would also make for an unstable superpower.

Perhaps non-originalist law professors favoring discretion for the electors even in the face of contrary statutes have now decided to reject such modalities of argument and embrace a more austere originalism. But in my view, the chances of  such a Damascene conversion are not much greater than of an Electoral College rejection of Trump.

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