The 2016 presidential election hasn’t happened yet.
Constitutionally, all that took place on November 8, 2016, was the selection of presidential electors in accordance with each state’s chosen method for appointing such electors. These 538 men and women will actually vote for the individuals they think should become president and (in a separate ballot) vice president. That election—the real one—will be held on December 19. On that day, the electors will vote in their separate states, list the votes given each candidate, sign and certify their state’s results, and transmit them under seal to “the President of the Senate” (current Vice President Joe Biden) for unsealing and counting before a joint session of Congress held on January 6, 2017.
And, constitutionally, the electors may vote for whomever they please.
To be sure, that is no longer the customary practice, and it hasn’t been for a long time. Today, a state’s electors typically are nominated by state political parties. State election laws then provide that a plurality vote for a party’s presidential nominee results in the election of the “slate” of electors pledged to vote for their party’s nominee. These party loyalists generally can be counted on to vote for their party’s candidate. Some states’ laws go further and purport to require, on pain of penalty—sometimes a fine, sometimes forfeiture of the office of elector—that electors vote for the nominee of the party to which they pledged support.
Nothing in the Constitution requires such arrangements. Indeed, quite the reverse: the best reading of the Constitution’s provisions concerning election of a president by the “Electoral College”—a term never used in the Constitution—is that state laws restricting the power of electors to cast their votes for president in accordance with their own personal judgment and individual conscience are unconstitutional. The upshot is that the electoral college may choose either Donald Trump or Hillary Clinton—or neither of them—to be the next president of the United States. Constitutionally, the power of choice lies entirely with the electors.
What Does the Constitution Say?
Let’s look at what the Constitution’s provisions for election of president and vice president actually say. Article II, section 2, clause 2 provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”
That provision establishes the number of electors each state has. It also establishes the plenary power of each state to prescribe the “Manner” in which its electors are appointed. Thus, a state legislature could choose to appoint electors directly, without holding any popular vote (as some states originally did). A state could appoint electors by congressional district, effectively dividing its electoral vote among presidential candidates. A state could even appoint a slate of electors opposed to the presidential preferences of the state’s voters if it wanted to do so.
The power to prescribe the manner of electors’ appointment entails a power to prescribe the qualifications for holding office. Here comes the tricky part: states might even have the power to require, as a condition for appointment, that electors pledge that, if selected, they will vote for the presidential candidate of the party that nominated them to serve as elector, when that party’s candidate prevailed in the popular vote.
But there’s a twist: once electors are appointed in the manner specified by state law, the power shifts entirely to the electors and is no longer constitutionally subject to control by the states. The Constitution specifies that it is the electors who have the power, and duty, to take all subsequent actions.
Article II of the Constitution, as amended by the Twelfth Amendment in 1804, states: “The Electors shall meet in their respective states, and vote by ballot for President and Vice President” in separate ballots. “The Electors” are instructed to make a list of the votes cast, and then to sign, seal, and deliver them. Once electors are appointed, there is no longer any role for state law, or state officials, to supervise and manage these actions. It follows that nothing in state law legitimately can restrict the electors in the exercise of any of these constitutionally assigned powers and duties. Most importantly, this includes the right to “vote” itself. Thus, for state law to restrict how electors actually vote, once appointed, is simply unconstitutional.
The Purpose of the Electoral College
This is arguably the line drawn by the Supreme Court in the somewhat ambiguous 1952 case of Ray v. Blair. The Court there upheld an Alabama state law requiring electors to pledge how they would vote, but seemed to take care to leave open the question whether such pledges could be enforced, consistent with what the Court was willing to assume was the “constitutional freedom of the elector . . . to vote as he may choose in the electoral college.” Requiring a pledge is one thing; controlling or punishing an elector’s actual vote is another. Justice Robert Jackson’s dissent was explicit on this point, concluding that:
No one faithful to our history can deny that the plan originally contemplated what is implicit in its text—that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices. Certainly under that plan no state law could control the elector in the performance of his federal duty, any more than it could a United States Senator who also is chosen by, and represents, the State.
The framers of the Constitution deliberately designed the electoral system to work this way, thinking it the perfect balance between democracy—the need for the people to have a voice in the election of president—and the desire to have a refined, informed body making the actual choice, in order to avoid the election of a demagogue or charlatan. As Alexander Hamilton wrote in Federalist No. 68:
It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose and at the particular conjuncture.
It was equally desirable that the immediate election should be made by men most capable of analyzing the qualities adapted to the station and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.
Hamilton concluded with a ringing statement of the need for discernment and good judgment in selecting a president for the nation and an endorsement of the electoral system for achieving it:
This process of election affords a moral certainty that the office of President will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.
A Purposely "Undemocratic" System
Hamilton was, of course, referring to the original vision of how the electoral system would work and not how it has operated in practice—with electors serving as mere ciphers or automata for popular vote state by state. While the Constitution permits electors to vote that way, this plainly was not how the system was intended to operate. Constitutionally, there is no such thing as the so-called “faithless elector.” That slanderous label is a constitutional misnomer. Electors who exercise their individual judgment are actually being faithful to the Constitution. They are simply being unfaithful to their political parties. A better label might be “party-defector elector” or perhaps “faithful-constitutionalist elector.”
It could be said that the framers’ original vision of how the Electoral College would work—with individual electors free to vote their personal preferences and consciences, regardless of how their state’s citizens voted—is “undemocratic.” In a sense, and to a certain extent, it is undemocratic. But that is the system the framers designed, intentionally providing for indirect democracy: a one-step-removed, vote-for-the-voters-who-really-vote “refined” electoral system. In that respect, the Electoral College actually is a system of representative democracy; it is just not direct democracy.
Moreover, the same “anti-democratic” charge could as well be pinned on the system as it has evolved in practice: the system of voting by states is not perfectly representative of the will of the people as a whole. Twice in the past sixteen years the candidate who won the most pledged electoral votes finished second in the nationwide popular vote (Donald Trump and George W. Bush). And if pure democracy and one-person, one-vote were the standard, the US Senate would have to be considered the most undemocratic institution we have under the Constitution, giving small-population states like Wyoming the same representation as large-population states like California.
All of this merely demonstrates what every well-informed schoolchild knows: that our Constitution created a representative, republican government and not a pure democracy, for reasons of federalism, history, geography, balance, and practicality. Those reasons are fairly debatable. But the system is not crazy, and it remains our constitutional system. The power and freedom of electors to vote for the man or woman they think would make the best president of the United States is part of that constitutional design.
So what about today? The November 8 vote—for electors—featured a race between two of the most widely disliked candidates ever nominated by the nation’s two major political parties. One of them handily (but not hugely) won the most pledged electoral votes, counting by states; the other narrowly won the most nationwide popular votes. Neither candidate can claim a true popular mandate. In a contest between deplorable alternatives, the voters seem to have split nearly evenly as to who was less horrible.
Isn’t it possible the framers’ constitutional vision—that electors would exercise their own independent judgment and pick whoever they think would make the best president for the nation—was designed for a situation precisely such as this?
Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis. He is co-author, with Luke Paulsen, of The Constitution: An Introduction (Basic Books, 2015).