Lessig on the Faithless Electors Case: “What Rick Hasen is Missing”

Larry at Medium:

It is so rare to be able to write such a headline. But when it is true, given the rightful importance that the Dean of Election Law’s opinion has to so many, it is an important headline to write.

Rick Hasen has worried about the lawsuit that I’ve helped shepherd, which will give the Supreme Court the chance to decide whether presidential electors retain a constitutional discretion when they cast their vote in the Electoral College. I was drawn to help press this question after the 2016 election, because I thought regardless of the answer, it is an answer we should secure outside of the context of an actual election. To force the Court to resolve it in the middle of an election would be a disaster for everyone, regardless of the answer.

We were therefore fortunate that the two cases that we brought ended in a conflict, leading the Supreme Court to grant cert. My colleague, Jason Harrow, and I will argue the two cases on May 13, as the last two cases of the term.

Hasen is anxious about, as he puts it, the “high risk that the presidential election results could be thrown into chaos by a handful of rogue electors.” But what’s striking about his analysis is that it is unusually incomplete. Hasen focuses exclusively on the risks on one side of the case — namely, the risks if we win. But he ignores the risks on the other side — namely, the risks if the states succeed in claiming the right to control how electors may vote. Call this the 20th Amendment risk. We’ll return to it below….

So let’s think about how that might play out. Imagine Joe Biden wins in November, by taking every state that Clinton did, plus Michigan, Wisconsin and Pennsylvania. That would give him 279 presumptive votes in the Electoral College. Now imagine — God forbid, not just because it’s not nice to hypothesize about someone’s death, but because, if he is the Democratic nominee, I desperately want him to win — Joe Biden dies after the popular election but before the College votes. Under the laws that Colorado and Washington defend, the electoral votes that would have been for Biden must stay with Biden. Those laws have no death exception (a few other states do, but not them). Thus, 21 electoral votes would be cast for a person who is no more. That would mean that no living candidate would have a majority in the College, thus throwing the election into the House. What happens then is anyone’s guess. The House could do the honorable thing, and vote as the people had voted: for a Democrat. Or the House, assuming Republicans control 26 state delegations as they do now, could vote in a purely partisan way, and re-elect Donald Trump. Either outcome is feasible; both outcomes would create significant political costs.

This is the problem caused by patchwork reform at the state level to a problem that obviously requires a federal solution. I’d be the first to support an amendment that would — like the 20th — give Congress the power to address this third contingency. It seems to me perfectly sensible that the Constitution should give Congress the power to direct electors to vote for the vice presidential candidate, if the presidential candidate were to pass. But if we don’t have that amendment, then the last thing in the world that we need — especially right now — is a series of inconsistent state laws that force a result without any human standing in the middle. Given the integrity of their history, I would much rather rely upon electors in this contingency than to rely upon the unintended consequences of state legislation designed to avoid a problem that has literally never been a problem.

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