By Lawrence Lessig
Conventional wisdom tells us that the electoral college requires that the person who lost the popular vote this year must nonetheless become our president. That view is an insult to our framers. It is compelled by nothing in our Constitution. It should be rejected by anyone with any understanding of our democratic traditions — most important, the electors themselves.
The framers believed, as Alexander Hamilton put it, that “the sense of the people should operate in the choice of the [president].” But no nation had ever tried that idea before. So the framers created a safety valve on the people’s choice. Like a judge reviewing a jury verdict, where the people voted, the electoral college was intended to confirm — or not — the people’s choice. Electors were to apply, in Hamilton’s words, “a judicious combination of all the reasons and inducements which were proper to govern their choice” — and then decide. The Constitution says nothing about “winner take all.” It says nothing to suggest that electors’ freedom should be constrained in any way. Instead, their wisdom — about whether to overrule “the people” or not — was to be free of political control yet guided by democratic values. They were to be citizens exercising judgment, not cogs turning a wheel.
Many think we should abolish the electoral college. I’m not convinced that we should. Properly understood, the electors can serve an important function. What if the people elect a Manchurian candidate? Or a child rapist? What if evidence of massive fraud pervades a close election? It is a useful thing to have a body confirm the results of a democratic election — so long as that body exercises its power reflectively and conservatively. Rarely — if ever — should it veto the people’s choice. And if it does, it needs a very good reason.
So, do the electors in 2016 have such a reason?
In this election, the people did not go crazy. The winner, by far, of the popular vote is the most qualified candidate for president in more than a generation. Like her or not, no elector could have a good-faith reason to vote against her because of her qualifications. Choosing her is thus plainly within the bounds of a reasonable judgment by the people.
Yet that is not the question the electors must weigh as they decide how to cast their ballots. Instead, the question they must ask themselves is whether there is any good reason to veto the people’s choice.
There is not. And indeed, there is an especially good reason for them not to nullify what the people have said — the fundamental principle of one person, one vote. We are all citizens equally. Our votes should count equally. And since nothing in our Constitution compels a decision otherwise, the electors should respect the equal vote by the people by ratifying it on Dec. 19.
3 thoughts on “The Constitution lets the electoral college choose the winner. They should choose Clinton.”
What is the intended constitutional function of the Electoral College? If we accept the definition of democracy as “majority rule with respect for minority rights,” then how may we regard the Electoral College’s ratification of Donald Trump’s election as a democratic outcome?
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The EC is typically republican which allows them to select another republican if they decide they can not vote for Clinton. At least that is what I read. Today is the big EC vote and I have not heard anything as of 12 midnight. I keep praying but I am not counting on good news.
I bet Clinton’s email does not seem so horrible now. At least it was not hacked by Putin. Sigh.
P.S. If the EC does not serve the American citizens, we should demand that election day be determined by the popular vote. That is my personal view anyway.