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  • Writer's pictureSeth Masket

The Supreme Court reminded us that the Electoral College doesn't deliberate

(Source: Wikimedia Commons)
Ohio Electors cast their ballots in 2012

A few thought's on today's ruling by the U.S. Supreme Court in Chiafalo v. Washington, which held that states may instruct their members of the Electoral College on how to vote and may punish or remove them if they wish:

I won't get too into the history of the Electoral College, which Justice Kagan does extremely capably in the unanimous decision. But I do wish to note that the idea of the Electoral College as some sort of elite council of elders that could soberly pick a president free of the influence of a dangerous rabble has been obsolete for centuries now.

Even before the Chiafalo ruling, it had long been clear that the Constitution doesn't really provide for deliberation among Electors. The Electors meet simultaneously in their own states to cast their votes. Yes, they can theoretically coordinate ahead of the vote, as Colorado's Democratic electors sought to at the end of 2016 by reaching out to Republican electors in other states. But of course this coordination was unsuccessful.

Basically, Electors are picked by their state parties for one specific task -- to cast a vote for their party's nominee. They are typically people with histories within the party and have some long term professional or political incentives to keep the party happy. Little enforcement or instruction is needed. Honestly, it's quite surprising that there are any defections at all. There were seven in 2016, a record high. Usually it's zero or one.

The idea that a state would need to instruct an Elector how to vote, no less punish them for defection, really does push against the idea that Electors can think for themselves or negotiate among others. They are functionally automatons, picked to officially ratify the expressed will of the voters of their states. The Court's decision this week reaffirms this.

One may then legitimately ask why the nation has an Electoral College. That's actually a two-fold question. The first part of the question is, if states can force Electors to vote a particular way, why do we bother with the pomp and ceremony of picking people and having them sign their names to a document? Why not just have the legislature or the Secretary of State certify that, say, a plurality of Colorado's voters picked Hillary Clinton in 2016 and therefore the state's nine Electoral Votes just automatically go to her? And yeah, that's a fair question. The Electoral College in this sense is something like the State of the Union Address or the White House Easter Egg Roll -- a traditional ritual of American democracy but hardly necessary for the Constitution to function.

But the second part of the question is, why conduct national elections and weight the results in such a way as to give additional representation to less populous states. That's a much trickier question, not really addressed by today's Court decision. But it's a reminder that, whatever virtues and rationales were used to justify the Electoral College back in 1787 really aren't relevant anymore. We have long since abandoned the ideas that average voters shouldn't pick their leaders, that voters primarily identify as Virginians or Vermonters rather than as Americans, or that a balance between large and small states is needed to keep states in the Union.

The main answer to this second question is that less populous states are not interested in giving up their additional representation. (It's a bias that assists them in the U.S. Senate, as well.) More generously, the rationale is that the most populous states in the nation shouldn't be able to force their presidential pick on the rest of the country. But the result is that the preferred candidate of the plurality of voters does not necessarily become the president. One could defend such a system of rules, but it becomes more problematic when party affiliation is correlated with state size, and giving states of a certain size additional representation also means giving one party an easier time winning the White House.

The Court's decision this week did not affect that. But it did make clear that that's the main function the Electoral College serves today.

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