Earlier today, when Ed Morrissey jumped on the news that the Supreme Court had decided against the faithless electors in Chiafalo et al v Washington, he didn’t seem to find the unanimous ruling surprising or, presumably, objectionable. And generally speaking, when you can get all nine of the justices from both sides of the aisle to agree on anything these days, it might be a positive sign of our judiciary working as intended. Also, from a purely emotional point of view, as I’ve said here before, the ruling is something of a relief because I wouldn’t like to see an election as decided by the voters overturned by the decision(s) of one or a handful of appointed political dandies who were awarded a position as an elector in a state party beauty contest.
But with all of that said, my original misgivings about how the court wound up deciding this case remain. The one really weak aspect of the unanimous decision as written by Elena Kagen is best highlighted in this excerpt from the NBC News coverage of the decision. (Emphasis added)
Writing for the court, Justice Elena Kagan said the Constitution gives states far-reaching authority over choosing presidential electors. That includes the power to set conditions on an elector’s appointment, “that is to say, what the elector must do for the appointment to take effect.”
What’s more, she wrote, “nothing in the Constitution expressly prohibits states from taking away president electors’ voting discretion.” The ruling aligns with “the trust of a nation that here, We the People rule,” Kagan said.
It goes a little bit deeper than this, as I’ll get to in a moment, but the idea that “nothing… expressly prohibits states from taking away president electors’ voting discretion” is a meaningless argument. As I’ve pointed out here previously, the Constitution lays out a specific set of powers and obligations describing what the government, particularly at the federal level is allowed and empowered to do. It does not seek to provide a comprehensive list of every imaginable thing that the government can’t do if it has a mind to do so.
Saying that the states are free to take away the electors’ voting discretion because such a thing wasn’t expressly forbidden by the founders should mean that the states could also order the electors to vote for whichever candidate the governor or a majority of their legislators preferred, no matter who won the most votes in the state. After all, the Constitution doesn’t specifically forbid that, either, right?
The broader issue here, and contra what Ed discussed earlier, is the subject I brought up when originally writing about this case. The popular argument in support of the court’s decision is also seemingly based on the idea that the Founders had the opportunity to prohibit States from taking away presidential electors’ voting discretion, but they chose not to put that down in the final version of the Constitution.
Again, this is a circular argument. As I previously wrote, the Founders had the opportunity to not even have an electoral college and simply go with the popular vote. There was a heated debate over this and Hamilton was compelled to write an impassioned case in favor of the college in Federalist 68. It was clearly his argument that carried the day, and it included a concise explanation of why electors might need to ignore the votes of the unwashed masses and select the “men most capable of analyzing the qualities adapted to the station” to be President.
Returning to Kagen’s argument for a moment, the Founders had the opportunity to not have an electoral college and simply go with the popular vote. But they chose not to do that. But today’s decision has rendered the electoral college effectively and completely toothless as if there were no point in having the institution in the first place. How do Associate Justice Kagen and her supporters square that with her own statements about what the founders intended?
As I said above, this is all strictly theoretical and an argument in favor of a rigid reading of the Constitution, not an endorsement of the practical effects. I don’t want to see a handful of rogue electors overturning an election. But I also don’t want to see a set of rogue Supreme Court Justices running roughshod over what appears to be the obvious intent (and the actual words) of the founders.