Lessig: Up to 20 Electors Might Flip and Vote Against Trump — But Can They?

POLITICO (cached link; no links for bullies):

Larry Lessig, a Harvard University constitutional law professor who made a brief run for the 2016 Democratic presidential nomination, claimed Tuesday that 20 Republican members of the Electoral College are considering voting against Donald Trump, a figure that would put anti-Trump activists more than halfway toward stalling Trump’s election.

Lessig’s anti-Trump group, “Electors Trust,” has been offering pro bono legal counsel to Republican presidential electors considering ditching Trump and has been acting as a clearinghouse for electors to privately communicate their intentions.

I tend to think this is ridiculous — but then, I thought the prospect of electing Donald Trump was ridiculous too. It seems supremely unlikely that this is going to change anything. The GOP whip count says it’s not happening and Lessig is wrong.

Possibly a more interesting question is whether electors can vote for someone other than the person a majority of state voters chose.

I think they can.

Politically, it would be a disaster, and people would reach for their pitchforks and torches. But constitutionally, I think they could do it.

I have not researched the law in this area. But based solely on a reading of the Constitution and on our nation’s history, my tentative view is that electors can vote for whom they want. Article II and the 12th Amendment give the authority to vote for the President to “The Electors.” Any state law that requires them to vote for the person chosen by the majority of the state voters would be an amendment to the Constitution that has not gone through the amendment process, and accordingly would be unconstitutional.

That’s the text. As for the history, keep in mind that there were faithless electors as early as the second election of James Madison.

I’m aware that two Hillary Clinton electors filed a suit in Colorado to invalidate a state law requiring them to vote for someone other than the winner of the state’s popular vote.

Colorado law prohibits them from shifting their allegiances, and Republican Secretary of State Wayne Williams has pledged to replace them if they do so — two moves the electors argue violate the U.S. Constitution.

On Monday, a judge denied preliminary relief to these electors, and delivered a lot of huffing and puffing about the sanctity of the vote and the outrage this would cause, yada yada yada. All of this is irrelevant to the constitutional question, but judges gonna monologue.

I don’t know whether the judge has issued a written ruling, but the issue in that case comes down to whether we are talking about requiring the legislators to vote a certain way, which seems impermissible, or replacing them when they indicate they are planning to be faithless, which may be constitutional.

In Article II, the Constitution gives the states authority to appoint electors “in such manner as the Legislature thereof may direct.” So if state law allows the electors to be replaced before the vote for any reason — including their declaration that they are going to be faithless to the vote of the people of the state — then replacing them before the vote could well be constitutional.

Replacing them after they have voted the “wrong” way would presumably not be.

Again, Lessig’s faithless elector scenario seems politically fruitless — and if it worked, it would make a lot of people angry — but we must adhere to the Constitution at all times, regardless of how it makes people feel. That’s an unpopular position these days, but it’s mine.

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