Another Way To Elect A President: The Presidential Electors (Part 5)

This podcast is part of the Democracy group. This is Larry Lessig. This is episode four of Another Way to Elect a President. In this episode, we talk about the mechanism, the place, the places where the electors cast their ballots. On the day set by Congress, across the country, electors gather in their state capitol to cast their ballots in a procedure which we will describe in this episode. It doesn't get complicated. It's just important to understand what happens afterwards based on what happens or doesn't happen here. Stay tuned. Okay, so welcome. Matt Seligman has been here many times and just. Matt, just identify your voice so people know that you're speaking because they know who you are by now.

Hi, this is Matthew Seligman returning again to talk about the Electoral College today.

And we have two students who've not been here yet. Michael Glansel, Why don't you introduce yourself and tell us a little bit about you.

Hi, there. My name's Michael. I'm a 3L at Harvard Law. I went to Cornell for undergrad. I'm originally from upstate New York and excited to tell everyone about the Electoral College.

You can't see this, but we get to see that Michael's actually in Hawaii right now for the pandemic. So there's a lot of envy on this call at this moment. And at the other extreme, Emma is in her car. Emma, why don't you describe who you are and why you're in a car?

Hi, everyone. I'm Emma Cateltis. I'm a 2L, and I also went to Cornell actually for undergrad from Bethesda, Maryland. I am currently in my car because they are doing fire alarm testing in my apartment, and there's a pandemic going on. So here we are.

She's not driving. I can verify that. Okay, so the objective, as I said in the introduction of this episode, is to make clear the steps in this critical next stage of the process for selecting the president. The actual steps when the electors cast their votes. But it's interesting to have a little background to this bit of the story because of all the parts of our Constitution that turned out to be really badly crafted. The original system that the framers thought of for electing the President was among the worst crafted. And the reason for that was that they imagined that all presidents would be like George Washington. They imagined that every president would be kind of the obvious uniter of the nation who would be affirmed by almost universal acclamation, and there wouldn't be anything like political parties that would fight between each other to select who the president was. So the system they had for selecting the president originally had electors like we have right now, but those electors each were to cast two votes, and then the candidate who got the most votes, as long as that candidate, and it was always a he back then, as long as he got a majority of the Electoral College votes. And the candidate who came in number two was the vice president. Now, you know, you can imagine what it would be like to have Donald Trump as president and Joe Biden as vice president. It's a little bit crazy to imagine that, but at that time, they kind of thought of, like, you know, the George Washingtons of the world. If you have two George Washingtons, those guys can work together. There's no problem in having number one and number two together like that. And it was fine for George Washington. John Adams was his vice president. But then when John Adams ran to become president in 1796, number two was Thomas Jefferson. And those though those two had been friends for many, many years and would eventually become friends again, writing an extraordinary series of letters to each other all the way to their death. And they both died on the anniversary of July 4, the declaration of Independence. At this moment in their relationship, they were not friends. Jefferson had a radically different conception of what the federal government should be from John Adams. And so they were fierce enemies. And so when they had to sit together as president and vice president, everybody realized this was a bad system. But then it only got worse. In 1800, there was an election, and there was a tie. There was a tie in the Electoral College, but the tie was not between the two candidates who were running for president. The tie was between the candidate who was running for president in what would be called the Democratic Republican Party, Thomas Jefferson, and his vice president, the incredibly troubled Aaron Burr. And the reason for that is Aaron Burr was supposed to arrange that one of his electoral votes would be held back so that the number one vote getter would be Jefferson and Burr would be number two. But, oops, turned out they forgot to do that so that they were tied, because the system says the person who gets the most votes is president. The person who gets number two is vice president. Not really addressing the tie. So because they were tied, they had to throw the election into the House of Representatives. And the House of Representatives voted many, many, many times. And if you've seen the Hamilton musical, it's not quite accurate in a lot of ways around this, but there is this critical moment where, which is true, where Hamilton, who didn't like Jefferson either, did decide that it was better to have a man who had beliefs, Jefferson as president. Then it was to have a man with no beliefs or at least no principles. That's what he viewed Burr as. Which, of course led to their eventual duel, which led to Hamilton's death. So all of that aside here, the point is they eventually resolved this in favor of Jefferson as president, Hamilton as. And Burr as vice president. And they realized they needed to change the system. So that resolution the Democratic Republican Party brought about in the first term of Thomas Jefferson's administration, and that was the 12th Amendment. And so the key change of the 12th Amendment was to say that when you vote as an elector, you vote first for a presidential candidate and second for a vice presidential candidate. And once again, the person who gets the most votes, as long as it's a majority. So today that means 270 votes or more, becomes the president. And today, obviously, we have tickets. So the vice presidential candidate would also get the 270 votes. Okay, so that change of the 12th amendment is now the basis for the system for electing electors. That was a long kind of introduction. And I can see all of you are sleeping except Emma, who's like, afraid because somebody's breaking into her car, it seems. No. So. So is that. Is that clear so far? You guys, are you guys still with

me or still with you?

Okay, so that means that there's this process which has become really a ritual, but the process is bizarrely specified in the Constitution. And I mean bizarrely in the sense it's in bizarre detail. So the first part of this process is in the original Constitution. Constitution says the Congress may determine the time of choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States. So as we talked about in the last episode, the time of choosing that kind of, to us sounds like It'll be at 10 o' clock in the morning or 12 o' clock at noon. But originally the time referred to a period of time. So there was for many years, until the 1840s, about 34 days during which people would vote. And then they would select their electors during that period, or the legislature would select their electors during that period. So there was a period of time during which you could vote, but the votes of the electors would happen on the same day in their states throughout the nation. And the reason for that was they wanted to make sure that when the electors cast their vote, they could not be engaged in any cabal or conspiracy with other electors around the nation. Because given the technology of the Time, if they all had to assemble in their own states and cast their votes independently, then you're not going to have any opportunity for the Texas electors to conspire with the New York electors or to conspire with the Florida electors. So the notion was these electors would be able to gather and as Hamilton thought of it, they could like deliberate about like who should be president, cast their votes, and then those votes would be sent eventually to Congress to be counted. And we'll be talking about that critical step in the next episode here.

And to connect what Professor Lessig is explaining now to what we talked about in the last episode. The key point to recognize here is that there are two steps in the process of electing a President. The first step is the one that takes place on election day, or at least now takes place on election day and we cast votes for electors. Now this is not what you may think based on the fact that it's a presidential election, but on election day you cast your vote for electors. Now, in many states, those electors are not even listed on the ballot, but that's what's happening on election day. Then six weeks later, those electors each vote for then president. And so this indirect process of electing a president, where the people elect electors and then the electors choose President and Vice President, is what creates so many of the complications that we'll be addressing today and then in subsequent episodes. Now, one of the things to bear in mind and to connect this to what we were speaking about in the last episode, is that up until the middle of the 19th century, people didn't have the right to vote for presidential electors. Rather, in most states, the electors were chosen by the state legislature. And that's relevant and it explains why we have this two step process that otherwise can just seem complicated for no reason. And the explanation is that at the beginning of our nation's history, in the beginning, at the end of the 18th century and the beginning of the 19th century, there was this idea that the people themselves might not have a say in present, but rather elected officials would choose wisely on their behalf.

So Matt, can I stop you and ask, is that why there were electors in the first place? Because we didn't trust the people to pick for themselves.

So if you read the debates, there's actually a lot of reasons why they didn't want the people to pick directly themselves. The most obvious is related to what we just talked about, about the way in which casting of votes in the states on the same day would make it hard to conspire in a Nation where it took four months to get from one end of the nation to another. The idea of running a national presidential election that the people would have any understanding of was kind of crazy. Like, how are you going to do it? Like, what was going to happen? You know, you couldn't have debates that were broadcast to the whole nation. You would have debates and then, you know, that story would trickle out and months later it would reach another part of the country. So there was a practical constraint. Many people wanted the idea of the people picking, but they didn't think that was actually going to be feasible. And instead what you'd have is a lot of local. A lot of local kind of favorite sons who would be selected, and nobody would get a majority. And that meant the House of Representatives would eventually pick the President. And that means Congress would control the President. And that was a disaster. They didn't want Congress to control the President. And the other thing they. So. And the other thing that's really important here is they went through a lot of struggles to think about how they were going to make sure that the President was really independent of the other powerful governmental actors. So the original suggestion was maybe Congress could pick the President. And then they thought, well, if Congress picks the President, then the President's going to be subservient to Congress, so he won't be able to be independent of Congress because he's dependent on Congress. And then they thought, well, what about the state legislatures? Same point. They would be dependent on the states in a way that wouldn't allow him to be able to act independently in the interests of the nation. There's a proposal for state governors to elect him, and of course, there's a proposal that the people elect him. But the problem with the people was what I described. So the idea of electors was this kind of compromise to allow independence of the President by creating this temporary body. It's a kind of parallel Congress that would have the ability to select the President and then it would disappear. So the President would not be worried about, like, keeping those guys happy because they were gone. But those people could select the President that really seemed to, you know, either originally be the right person to select or later on conform to the political values of the party that happened to make them electors. Because very quickly after the 12th amendment, it's just parties that are driving who gets to be electors. And those electors are now voting for President, depending on who happened to win in the local state elections.

And now if we fast forward to today, as I mentioned before, many states don't even list the names of the electors on the ballot. So people really do think that they're voting for president. And obviously, changes in our political culture and our technological environment have made many of the concerns and practical circumstances that motivated the Electoral College in the first place outdated, irrelevant, antiquated. But here we are still with this legal structure in place that we have to try to operate in such a different environment.

Yeah. Now, the other important thing to recognize here is that, of course, what happens on election day is the technical appointment of the electors. It's a little weird because obviously the election isn't really over on election day because some ballots get counted after election day, and the ballot counting process could take many days. But the point is, the determination is, in principle, something that happened on election day. All votes were cast on or before election day. And then because of the rules, every state except two have applied. The electors that become electors on election day are those that are from the party that happen to win the most votes in that state. And so sometimes that's quite an extraordinary distortion because, for example, you know, you just have to win a plurality, and if there are many candidates in the race, or at least three candidates, all significant, then you can win, you know, technically even less than 40%, and still get all of the electoral votes from that state. That's what happened with Bill Clinton in 1992. I think he got just 37% of the vote in Nevada, but he got all of the electoral votes in Nevada because Nevada has winner take all. But then the point is it's a slate of electors that's picked by the party. It's not like two electors supporting the Democrats and three electors supporting the Republicans. And so that slate is meant to gather in this ceremonial, what's become now, ceremonial process in the state Capitol to cast their votes on the day that's been selected by Congress, which is a complicated formula, or it's a hard to read formula, but in this year yields the answer. December 14th was the day that they will all gather in their state capitals and cast their electoral votes. Okay, now, I was saying before, it's a kind of weirdly detailed process in the sense that usually the Constitution speaks in broad generalities and leaves lots of discretion to Congress or the states to fill in the details. The 12th Amendment is really very specific. So it says the electors are going to meet in their respective states and vote by ballot for president and vice President, one of whom shall not be an inhabitant of the same state with themselves. So this is saying you can't vote for Two people from your state, and that's to avoid you just picking favorite sons. So there has to be at least one person who's not from your state. Madison thought that was a genius idea because they thought the first person they'd vote for would be from their state, and then the second person they'd vote for would be the person who is most George Washington. Like. So that would be a nice way to filter. But of course, once you had the party system, that was no longer how it would work.

And that just shows just another aspect of how the system was designed to deal with concerns that no longer are the most pressing ones. Because now we don't have favorite son or favorite daughter candidates dominating the presidential election at this point. It's not even clear that selecting a vice presidential candidate from a particular state gives any advantage at all from that state. And so this year, we have vice presidential candidates that come from on the Republican side. Mike Pence is from a solidly Republican state of Indiana, and Kamala Harris is from the solidly Democratic state of California. So just, again, it illustrates how much the concerns that the framers had in their minds have dissolved away and been replaced by others.

Okay? And so then they have to cast their ballots, and they shall name in their ballots the person voted for as president, and in a distinct ballot, separate ballot, the person voted for as vice president. And then it says they have to make their distinct lists of all persons voted for as president and of all persons voted for as vice president. So this is two separate things. One is the list, and the other is the ballots and the number of votes that each got that's on the list, which list they shall then sign and certify and transmit sealed to the seat of government in the United States, directed to the president of the Senate, who is the vice president, who right now means Mike Pence. And then the rest of the 12th Amendment deals with how they get counted. We'll be dealing with that later on. But one of the. One of the implications which many people thought that detailed listing of the powers and duties of an electors produced was the idea that these electors were really meant to be independent officers in the constitutional system, that they were supposed to have a kind of power that was not to be controllable by Congress, certainly, and by the state legislatures either, but we'll get to in a second exactly why that image has been erased by the Supreme Court.

Emma, so how did we get to this point where we had these kind of independent electors at the beginning of the country? And now states basically decide for the electors. Most states have a winner take all system.

Yeah. So the big change is really Thomas Jefferson's election, because when Thomas Jefferson becomes president, that cements the idea of party presidents. It's no longer the president is above political party, the way Washington was, the way the Queen of England is, but now it's like political parties competing with each other and they have a president. And that began the process of just basically saying to the electors, look, your job is just to follow what the party tells you to do. And so we're going to put a bunch of party loyalists in as our electors, and they're going to gather and they're going to vote as we expect they're supposed to vote. And even though the system that was set up presumed that they had a lot of discretion, you know, it turns out they don't have much discretion. And that sounds kind of weird, but until you start thinking about, for example, an institution like the United States Senate. Right. The Senate has a bunch of people elected as Republicans and Democrats. We understand now the way parties have evolved that if you're a Republican member of the United States Senate, you're expected to vote with a majority leader. You really, most of the time, have got to vote with the majority leader. And on party calls, you must vote for the majority leader or else you're going to be punished by the party. But nobody doubts, even though they vote in this lockstep way with their party, that a senator could, if he or she decides, vote contrary to the party. So when John McCain voted not to eliminate Obamacare, it was a dramatic moment on the floor of the Senate, not because anybody wondered whether he had that power, but because every Republican was supposed to vote with a majority leader and the majority leader wanted Obamacare abolished. So the idea of somebody having a freedom to vote how they want is not inconsistent with the idea that they're going to become loyal members of a party who will vote predictably one way or the other. And that's how a electors evolved to be people who everybody expected they were just going to vote one way. Even though it turns out historically there have been cases where electors have voted contrary to how they were pledged. And so that issue, we're going to talk a little bit more about that issue in detail with Jason Harrow, who was my co counsel when we were arguing the Cefalo case in the Supreme Court and the Baca case in the Supreme Court, which is about the constitutional freedom of electors. But that case was triggered because in 2016, when of course, Donald Trump would be the presumptive winner in the Electoral College, even though he lost the popular vote by 3 million votes. Assuming we're not taking seriously the claim that those were illegal aliens who voted in that moment, there were many electors, especially on the Democratic side, who began to wonder, maybe we in the Electoral College should do something about this problem. And a bunch of electors called the Hamilton electors, appropriately enough, not after the musical, but after the real guy Hamilton, began to organize to try to get other electors, in particular Republican electors, in particular 37 Republican electors, to vote with them for somebody other than Hillary Clinton or Donald Trump. They wanted them to vote for another Republican like John Kasich. And the idea is, if they got 37 to do that, 37 Republicans to do that, that would throw the election into the House of Representatives. And the House of Representatives could then decide, should it be Donald Trump who didn't win the popular vote, or should it be another, more compromised Republican, because people all presumed it had to be a Republican, given Donald Trump had presumptively won the Electoral College. My own view was, maybe they should think, we'll just follow the popular vote should be Hillary Clinton. But I think nobody really thought that would be possible. But when they did that, they thought they were acting as the electors the framers created because they were not acting against the will of the people who voted for them or even the will of their party, because everybody knew Hillary Clinton was not going to win. So when they voted contrary to Hillary Clinton, we represented electors in Washington and in Colorado who did that. It's not like Hillary Clinton was any worse off, but they were trying to bring about a candidate other than Donald Trump. And they thought, you know, everybody who had voted for them would rather have somebody other than Donald Trump than have Donald Trump. So they thought they were acting faithfully with the people who elected them, but they were called faithless electors because they didn't vote according to how they were instructed to vote. And that's crystallized the question of whether electors are as they were intended to be, or electors have become something very different.

So, Professor Lessig, can you clarify? What is the mechanism by which these electors, these usually nameless electors, are instructed to vote for one or another candidate? So is that a legal requirement or is that just the party boss down at headquarters, you know, says, you better vote for Hillary Clinton or you better vote for Donald Trump or else, or is it just an expectation?

So it differs by state. In many, many states, there's no instruction at all because they're picking party loyalty loyalists. Why do you need to instruct them, like, you know, gonna pick 35 Republican loyalists, they're gonna vote for the Republican. You don't need any extra kind of direction. Here's the person you're supposed to vote for. Sometimes it's so, you know, it's like completely self interest. So, you know, Bill Clinton was an elector in 2016 from New York, Pretty clear who he was gonna vote for. But then there are some states that began to direct their electors to tell their electors how they should vote, both by making them pledge to vote for the party candidate. And then eventually states started to say, if you don't vote for your party candidate, we're going to punish you. So we'll punish you either by fining you. That's what happened in Washington State in the case Chofalo versus Washington that we argued in the Supreme Court. So Gefalo is a case. So that's a case where there's a fine sometimes by saying they would be criminally penalized. So some states threatened prosecution, and then some states said, we'll just remove you, just kick you off and then appoint a new elector if you vote the wrong way. And so if you watch the proceeding in 2016 in Colorado, it's this extraordinary scene. It's almost like it's out of, you know, Cultural Revolution China in the 1960s, because you have these electors all sitting at a table, and the room is filled with citizens from Colorado, and the electors are filling out their ballot, and then they hand them in, and then the Secretary of State announces the vote, and he says, one vote is invalid and we have to appoint a new elector. And everybody. Those whispers break out. Why? Why is the vote invalid? And because he says, because the elector voted for the wrong person. So he said to the electors, please nominate a new elector. And the electors nominated the person who had just been fired again. And the Secretary of State said, you can't do that. You have to appoint somebody who will. Who will vote the right way. And so the whole idea that you had a process where you were not allowed to vote except in one particular way kind of made it seem like it's not a vote anymore. It's just a complete charade of. And yet that's what the law. That's what essentially Colorado enforced, and that's what some laws enforce. We're going to be talking about a particular reason this is a problem in a later episode, because if, God forbid, a candidate dies before the Electoral College votes, and you have a state like Colorado or now like Washington that says you must vote for the person who won the most votes in your state, and if you don't vote for that person, you're automatically removed as an electoral. That could force these electors to vote for a dead person, which could force the election into the House of Representatives. So that's a question we're going to focus on in the. We call it the 20th Amendment problem because that's a problem created by the incompleteness of the 20th Amendment. But in general, for most of history, there's always been either an expectation or subtle mechanisms to get people to vote the right way. The reason it began to be a focus of regulation was actually the Dixiecrats. So you remember the Dixiecrats were Southern Democrats who were very committed to segregation, on the policies of racial inequality, which of course, the Democratic Party had been born in some sense after the Reconstruction as that party. But the Southern Democrats were increasingly alienated from the liberal Democrats who believed in racial equality, who wanted to see integration of schools and see integration and African Americans with the right to vote. And so they began to say that if the party veers in the favor of equal rights, they would split off from the party. And so they began to threaten that as Democrats, they wouldn't vote for the Democratic nominee as they would be instructed as electors. So states started to say, okay, you need to take a pledge at least. And the Supreme Court, in a case called Ray v. Blair in 1952, reviewed that and said, yes, you can make them take a pledge that they will vote for the right party. But that was the trigger that began this process of increasingly regulating these electors.

So you mentioned that party loyalists are the ones that serve on the Electoral College. Who are the people that decide who. Who gets to serve on a certain slate of electors? And can it just be anyone? Could just any person on the street who says, oh, I'm interested in being an elector, become an elector?

So it's different state by state. Pennsylvania actually says. The Pennsylvania law says basically ask the presidential candidates who they want as electors, and the presidential candidates will just name a list and that'll be the electors from Pennsylvania. Some states have a process where state conventions, state party conventions select the electors. So in those states, basically anybody could become an elector, right? You just go to the convention, you argue in favor of you being an elector, and you get elected. So in Washington state, the electors that we represented were very independent minded Democrats and they had gone to their local party and they had worked their way up into the state convention to be able to be considered as electors, and they were elected as electors. And between those Two extremes. Most states basically have a party mechanism that's selecting the electors and making sure that the people they select are people they can trust. And, you know, historically there's a good reason to trust them. Historically, there's been exactly one election where an elector flipped sides in a context where it could have changed the results. And we heard about that story in episode two of this podcast. That was Samuel Miles from Pennsylvania in 1796 when he flipped sides. But he flipped sides because he just wanted to vote the way the people in his state had voted. He was appointed as a Federalist elector, but Pennsylvania voted for Jefferson, so he voted for Jefferson in the end. So even that is not a faithless elector from democracy. It's just he wasn't voting as a expected. But that's the only time in history that you've seen a lector vote in a way other than how they were expected to vote that created any threat. Every other time you see electors voting contrary to how they were pledged, it's either because, number one, a presidential candidate died. That's the largest number of so called faithless votes. Horace Greeley died before the Electoral College voted in 1872. And his electors had to vote for somebody else. And some of them didn't. They still voted for Horace Greeley. Their votes were thrown out. But the others had to vote for somebody else. That's completely obvious. And then you have a bunch of electors who are trying to make a political statement. So the elector in Washington State who caused the state to pass the law that said they would fine electors who voted contrary to their pledge was a Republican elector in 1976 who voted for Ronald Reagan rather than for Gerald Ford. Gerald Ford won the popular vote in Washington State. Hard to imagine in 1976, but he did. But that elector believed that the future of the Republican Party was Ronald Reagan. So he voted for Ronald Reagan. He knew it wasn't going to matter. He was just trying to speak. He was just trying to exercise his political right to speak. So he did that. That created the statute. And in every other case, it's basically something like that. Until 2016, where it really was, you could say a conspiracy to try to bring about a different result. They thought it justified because they thought it was a result closer to what the people actually wanted. But it certainly was a coordinated effort across the country to try to bring a group of electors to vote contrary to how they were pledged to produce a result other than what would have been produced by the results of the elections.

And so the history that you've explained sets up a problem. So the history sounds like we had a system at the founding where electors votes for president were not necessarily expected to be tied to the popular will. And certainly we're not going to be tied to the outcome of a popular vote because there was no popular vote. Now, over the centuries and over the last decades, there have been increasing state regulations of electors votes that at least seem to bind the electors votes closer and closer to the outcome of a popular election. So this to my ear, sounds like, well, this is a good thing because, you know, we here in America believe in democracy. And so the outcome of a presidential election should depend on the will of the people, rather than, as you termed it, a conspiracy among the electors to put somebody else in office. Now, that isn't entirely your view of the role of the electoral college right now. So the way that you characterized what was going on in 2016 with the faithless electors is that they were trying to reflect the will of the people better than the system would have had them. So how does that work? How do we reconcile that tension?

Well, I think the best reading of who the electors are before the Supreme Court made its decision, and we'll talk about what that decision says, but before the Supreme Court made that decision, I think the best reading of who the electors are is they are presumptively, overwhelmingly, presumptively expected to vote for the person who won the popular vote in their state, Period. And the only reason to have humans in that position is to act as a safety valve if something goes awry. So the 20th Amendment expected that if somebody dies, they'd pick who the candidate would be, they would exercise their discretion. And that's, of course, the most common time where they change their vote. Or what if it turned out that somebody was a foreign operative or somebody was convicted of a felony? I mean, there are all sorts of reasons why you might imagine there would be a good reason not to vote as you were pledged to vote. And what the Hamilton electors thought is on that list of reasons why you might not vote the way you're expected to vote was if the person who presumptively was going to win actually didn't win the popular vote, and so they wanted to exercise their discretion to try to bring about a different result in that, you know, case, which has now happened twice in the last 20 years, and because they wanted to exercise that discretion for that purpose, they voted contrary to how they were pledged. Now, my, my own view is that's probably a pretty good reading of who the Electors are or should be, given the Constitution as it is. But I wouldn't set up this system the way it is if I were writing my Constitution from scratch. I mean, I don't think this makes sense today, and I would have a different system for the electors. But I think it's a pretty good reading of who the electors are.

Michael points out one of the strange historical oddities here, that over the course of the 20th century, the electors have been bound by state law tighter and tighter to the outcome of the popular vote in each state. But if that's the direction that we're going in, that the electors are supposed to simply reflect the will of the popular election, why do we have electors at all? And so what accounts for the fact that we've had this simultaneous move towards binding electors to popular votes and states, but only halting moves towards eliminating the Electoral College more generally?

Well, I mean, first of all, the eliminating of the Electoral College is an idea which has been very popular. Like in the 1970s, there was overwhelming support for it, and Congress came very close to doing it. But now, especially after 2016 and 2000, it's a very partisan idea. So the country's actually split on the idea of eliminating the Electoral College. But even if they were united, constitutional amendments are very difficult. So, for example, this fact that electors presumptively have discretion, this is a fact that's been complained of ever since 1800 when the they didn't exercise the discretion the way they were supposed to. In 1801, Thomas Jefferson received a letter from Albert Gallatin, who said, you know, we gotta do something about these electors like these. This is a nightmare. This could be a disaster. And Jefferson said, yeah, I think we should eliminate the electors and just allocate votes to each state. And then the legislature can say how the votes will be directed. So a legislature can say the winner of the popular vote gets all the electors, or will proportionally allocate the electoral votes based on the proportional results in the states. And the point is, that idea was present. It was just not added to the 12th Amendment. But then after the 12th Amendment, over and over and over again, people tried to propose amendments to remove the discretion that electors had. Thomas Hart Benton kind of was obsessed with the idea. Every year for 20 years, he introduced a constitutional amendment that would try to remove the discretion of electors. And the reason it didn't happen is not so much that people thought it was great to have discretion. They didn't think it mattered. They thought you could trust electors. Electors are never going to cause Trouble. And if they do cause trouble, maybe there's a good reason for them to cause trouble. So this difficulty in amending, plus not really seeming like a hugely significant problem, kind of means the status quo wins and we don't ever get any constitutional change to address it.

And so we have an uneasy equilibrium that exists between the democratic impulses of wanting the electors to reflect the popular will in each state, but the political impossibility of a constitutional amendment that would be required to actually eliminate the electoral College and just have a popular vote. So then the question is, what problems can follow from this uneasy equilibrium that we're stuck in? And so one question. As money flows more and more into politics, it seems to me that instead of spending a billion dollars on super bowl and World Series television ads, the cheaper way to become president is just to bribe the electors.

Yeah. So Michael, you texted something about this. Is that your concern here?

Yeah, yeah. I mean, the thing that popped in my mind was that SNL sketch that they did four years ago where Kate McKinnon plays Hillary Clinton in and Love actually parody. She's knocking on electors doors, asking them, begging them to vote for her. And I was wondering, instead of just begging, could you just bribe someone? Could Hillary Clinton show up on an elector's front door and hand him a check for $3 million and have them vote for her?

Yeah, you know, I can report. So I argued this case, Cefalo, and the Supreme Court actually argued it at my office desk on the telephone. Cuz obviously this argument was in the middle of the pandemic. And when we quote unquote walked into the argument, it was quite clear immediately that the court had been captured by this fear that electors would be bribed. There was a brief by the campaign legal center that said bribery laws didn't apply to electors and nobody knows how you would control them. And there's so many opportunities where they could be bribed. And Rick Hosan, who's one of the leading, maybe the leading election law scholars, had written this piece about how a handful of electors could be bribed and flipped the results. So question after question from those justices were obsessed with this idea of the bribing of electors and like, how do we protect against the bribing of electors? And it felt like an impossibly difficult barrage to respond to because, you know, in the context of an oral argument, it's not easy to help them see a different world. But the reality is never in our history is there any evidence that any elector has ever been bribed. And it's Pretty obvious why. I mean, you know, if you've got the California electors, all of them for, you know, let's say Joe Biden and 12 of them mysteriously cast their vote for Donald Trump, you know, you'd be like, why? Why did you do that? And it wouldn't take much to look like, trigger the investigation, which would lead to evaluating whether in fact, they were bribed. And I think it was just completely wrong to say that federal law didn't regulate bribery. I think it plainly regulates the bribery of electors. And so these people would be prosecuted as having committed a bribe. So I don't think any. I don't think it's even plausible to imagine bribery as the problem. Yet, in principle, these electors get to, you know, according to our view, they have a discretion. It's a constitutional discretion. They get to cast their votes as they want. Now, the court decided that case. This is the punchline, obviously, the court decided that case and said that electors could be directed by state law on how they vote. They could be fined if they voted contrary to their pledge. They could be kicked off if they voted contrary to their pledge. The states have, we could say, an overwhelming interest in controlling the electors, at least in a context where a candidate hasn't died. I mean, that's the question that isn't really resolved. And so what that means is the electors don't have that discretion, at least if the state directs them. But right now, the vast majority of electors are not directed by state law. So if you're worried about bribery, there's still hundreds of electors out there that you could bribe without any direction of state law pushing them against the bribe. So, you know, they're not going to be automatically kicked off if they voted for Joe Biden or for Donald Trump contrary to their pledge. Their vote is not going to be discarded. They're not going to be fined. They're perfectly free because the states don't actually try to control them. So if that is really an issue, we need to be worried about it still, because Cefalo didn't solve that problem.

But my view leads to the next question. Continuing our theme of extreme anxiety in advance of the election, should we be worried about bribery of electors in states that don't have state laws binding the electors to the outcome of the popular vote?

I don't think we should, and here's why. This is another part that was just not before the court, but is pretty obvious when you look at it. When we talk about the Electoral Count act, we'll recognize that the Electoral Count Act Pretty expressly gives Congress the power to ignore votes, quote, not regularly given, which was a phrase that was referring to lots of things. But one of the most important things it was referring to is bribed votes. So again, imagine 12 voters from California mysteriously vote for Donald Trump. They have no reason to vote for Donald Trump. It's not like Donald Trump has given anything to California. He's just scolded them for not raking their forests. So there's no plausible good faith reason to believe they would vote for Donald Trump. That would immediately launch an investigation of why did they vote for Donald Trump. It's pretty hard to hide bribes, right? So those votes would be viewed as votes that were the product of bribes. And so when it came to Congress, Congress could decide whether to count those votes or not. Now, it's not costless, because if Congress doesn't count those votes, that means California has lost 12 votes, which means Joe Biden has lost 12 votes, which means it could easily throw it into the House of Representatives. But the point is, the regulation of the bribe would happen by Congress in the context of deciding whether to count the vote or not, and by law, federal law, that would say if you accepted a bribe to change your vote, you're going to go to jail. And I'm pretty sure there would be a pretty aggressive prosecution of every single one of those electors.

Well, just to push a little bit of skepticism about this, so you're saying that in a state like California that doesn't have state laws that bind electors to the outcome of the popular vote in that state, then there are other mechanisms for regulating the votes of electors. And those two mechanisms are one, Congress, which will be the subject of our next episode, and how the electoral votes are counted, and second, federal law, and in particular federal anti bribery statutes. Now, the skepticism that I can voice here is one, Congress is not always a good faith actor either. And second, the Department of Justice has been increasingly politicized, so we can imagine a situation in which electoral votes are, are bought. Congress doesn't step in to reject those votes, or even just rejecting those votes results in a majority for the bribing candidate and then that candidate wins and then directs the Department of Justice not to prosecute the electors who are bribed. So, I mean, it's just jaw dropping that this is a scenario that we have to discuss in 2020. But could that work?

Well, so could is a big word. In principle, yes, what you've described is possible, but I don't think it would happen like that because you're right. If you don't act in good faith, you can do any number of things under our existing system. What we'll talk about in the next episode is the thing that it's more likely you would do than try to bribe a bunch of electors. The more likely thing you'd try to do is just appoint another slate of electors, get your governor to certify that slate, and once you have that new certified slate, then nobody's committed a crime, nobody is going to go to jail for having taken a bribe. And presumptively, under the Electoral Count act, that other slate has to be counted. Right. So the question is, if you wanted to hack the election, what's the best strategy? Seems to me pretty clear bribing electors is one of the worst strategies.

Well, that's an interesting bit of faint praise that this is not the weakest part of the legal framework for presidential elections.

Yeah. And, you know, nobody's here praising our system because Jason isn't on the call. He can't be optimistic and be praising the system. So nobody's praising the system. I'm just saying that, you know, I feel kind of bad for the poor electors because they've served a pretty important role in our history. They've exercised their discretion in an appropriate way. They've never been convicted of bribery. They've never even been suggested as having engaged in bribery, unlike members of Congress. I mean, you talk about bribery, I mean, there's plainly obvious ways that if this, you know, if the election goes into the House of Representatives and Donald Trump says, oh, Pennsylvania delegation, here's what I'm gonna do for Pennsylvania if you vote for me. I mean, you know, there's any number of ways in which Congress bends to bribery that we can all expect and believe in. But the idea that the fear that these faceless, nameless servants would engage in this kind of criminal act and screw up our election is just kind of insulting. It's insult added to injury. Because, of course, the consequence of that decision is that these are nothing more than potted plants. And that really presses the question, why the hell do we need them anymore? I mean, after the decision in Cefalo, the Boston Globe says the Supreme Court makes it official. The Electoral College is an anachronism. And that's right. Why do we have electors if they have no power other than just doing exactly what the state tells them to do? The framers would look at that and say, well, why do we have electors now? Because now they're perfectly dependent on the states. And so the states have the power that we wanted to deny them by creating something called electors. But that's where we are. December 14th, they will gather. If there's one slate, they will gather in the state capitol and it'll be a big official ceremony. If there are multiple slates, they'll gather in the state Capitol and the Ramada Inn next to the state Capitol and each slate will cast their votes and they'll follow the procedures of the 12th Amendment and also the supplemental procedures that are articulated in the Electoral Count Act. And they will gather their certificates up and they will ship them off to the president of the Senate, Mike Pence, who then gets to decide what he's going to do with these multiple slates. And one of our episodes will be a conversation about what power Mike Pence has when he's confronted with two separate slates. All right, we're at the end. If there are no more questions or eye rolling frustration at the insanity of the system we have. I just want to thank you guys for participating in this conversation. Emma, Michael and Matt, it's great to have you as always. That's the end of this episode. In the next episode, we take up what happens to those votes now that they've been cast by the electors. They're sent to Congress. They're sent to the President of the Senate, the vice president this year, Mike Pence. How he and how Congress then deals with those votes will be the subject of episode five. Stay tuned. You can share this podcast at EqualCitizens US AnotherWay and give us feedback and ideas and places. You'd like to see the podcast outside of this mini series too. We're grateful for you're listening. We're even more grateful if you get your 10 best friends to listen and if you can help support the production of this podcast. Obviously, our work is for free, but the producers and the distribution is unfortunately not. You can find a place to help us at EqualCitizens US donate. Anything would help. And we have a Patreon account as well where you can help support and get extra features from this podcast. Thank you for listening. This is Larry Lessig. Stay tuned for the next episode.