Bench Memos

The Electoral College’s Democratic Federalism

What Lawrence Lessig Overlooks

A few days ago in the Washington Post, law professor (and briefly a candidate for the Democratic nomination for president) Lawrence Lessig made a case for the electoral college to choose Hillary Clinton over Donald Trump, because Clinton won the raw popular vote nationwide.  (President-elect Trump may profess to doubt she did, but she did.)  Orin Kerr, at the Volokh Conspiracy, has already replied to Lessig, pointing out how inconsistent Lessig’s case is, since he argues on the one hand that the framers created the electoral college as a body (actually, several bodies, one in each state) that could exercise independent judgment, and on the other hand that its members should sacrifice their judgment to a latter-day “one person, one vote” principle and follow the national popular vote tally. 

Lessig even goes so far as to say that except in the rarest cases when “the people go crazy,” the electors should not “veto the people’s choice.”  But what Lessig completely misses, and Kerr does not point out in his reply, is the federalism of the electoral college.  I can’t make the point better than Martin Diamond did, in his 1977 AEI pamphlet “The Electoral College and the American Idea of Democracy.”  With the “unit rule” or winner-take-all principle legislated in nearly every state, Diamond wrote:

In fact, presidential elections are already just about as democratic as they can be.  We already have one-man, one vote—but in the states.  Elections are as freely and democratically contested as elections can be—but in the states.  Victory always goes democratically to the winner of the raw popular vote—but in the states.  The label given to the [then-] proposed reform, “direct popular election,” is a misnomer; the elections have already become as directly popular as they can be—but in the states.  Despite all their democratic rhetoric, the reformers do not propose to make our presidential elections more directly democratic; they only propose to make them more directly national, by entirely removing the states from the electoral process.  Democracy thus is not the question regarding the Electoral College, federalism is: should our presidential elections remain in part federally democratic, or should we make them completely nationally democratic?

Whatever we decide, then, democracy itself is not at stake in our decision, only the prudential question of how to channel and organize the popular will. . . .

At Public Discourse, two essays have recently been published that rightly remind us of the constitutional independence of the electors.  On December 19, each can do as he pleases and take whatever consequences that come.  But the legislatures of 48 states, acting under their constitutional authority, have decided that slates of party-nominated electors will be chosen according to the results of statewide popular voting for presidential nominees, and the other two states have chosen a mix of statewide and House-district voting.  These choices create a legitimate presumption in favor of 306 electoral votes going to Donald Trump.  Hillary Clinton’s lead in the aggregated national popular vote (which Lessig says should not be “vetoed”) could be said to come entirely from the results in just one state, California.  If Lawrence Lessig would care to explain why the electors in all the states Donald Trump won should take their cue from the voters of California, I’m all eyes.

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