| Get Jonathan Bernstein's newsletter every morning in your inbox. Click here to subscribe.
The Supreme Court is scheduled to hear arguments in a case on "faithless electors" on Wednesday. If hard cases make bad law, then we can only hope that we don't get a terrible precedent out of this one. The issue before the court is whether states can bind their electors — that is, the people who actually cast Electoral College votes for president and vice president — to the candidates chosen by voters. Some states have passed laws that attempt to do so, and in 2016, when there was an unusual run of electors who didn't want to vote for the candidates they were supposed to vote for, two states attempted to enforce those laws. Thus we wound up with lawsuits that've now reached the high court. Whatever you think of the Electoral College system, the electors themselves are at this point a clear constitutional flaw. The original idea was that they would act some sort of elite-of-the-elite who would exercise independent judgment on the candidates after people had gone to the polls. Although that basically never happened, the concept unfortunately persisted even after the 12th Amendment rewrote the process for picking presidents (for a more detailed history, see William Mayer's chapter in "The Making of the Presidential Candidates 2020" — hey, that's the book that Casey Dominguez and I co-edited). Law professor Lawrence Lessig pursued the current lawsuits in hopes of replacing the Electoral College with a popular-vote system. But I strongly agree with Rick Hasen: There's no reason to expect the suit, however it's resolved, to accomplish that goal — and it introduces new instabilities into the political system. While it's unlikely that faithless electors would ever actually overturn an election, even if states are barred from binding them, the expectation that they'll vote for the candidate who won a given state is a healthy, stabilizing norm that has worked almost as well as a constitutional rule would have, and a court ruling that the electors are free is likely to weaken that norm. That said, the constitutional language here seems unclear and as far as I can see could easily support a ruling either way. Keith E. Whittington argues that the best solution for the court is to kick the whole thing back downstairs. He may be correct. Steven Taylor suspects it won't matter either way, given how improbable it is that faithless electors would ever change the result. On substance, that sounds right to me — but I also would really rather not add an incentive for parties to create sleeper-agent electors. As long as we're stuck with the Electoral College system (for better or worse), it would be nice if we could could clean up the sloppy constitutional language and require that elections be conducted the way most people assume they should be: winner-take-all electoral votes by state, based on the plurality winner of a popular vote (we could allow Maine and Nebraska to retain their hybrid systems). That's not likely to happen, but in the meantime I'm with Hasen in opposing attempts to create chaos in the hopes that a better system would emerge from it. That strategy rarely works; what chaos normally produces is more chaos. 1. Lee Drutman has the evidence that vote-by-mail has not advantaged either political party. 2. Here at Bloomberg Opinion, Natasha Sarin explains why a new Republican Social Security scheme doesn't make sense. 3. Paul Krugman on the possibility of a depression. 4. David Frum on how President Donald Trump makes himself incomprehensible to all but his strongest supporters. 5. And Jared Bernstein on why big deficits make sense now. Get Early Returns every morning in your inbox. Click here to subscribe. Also subscribe to Bloomberg All Access and get much, much more. You'll receive our unmatched global news coverage and two in-depth daily newsletters, the Bloomberg Open and the Bloomberg Close. | 
Post a Comment