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Has the Roberts Court Finally Met An Attempt to Undermine Democracy It Doesn’t Like?


Having no idea what Larry Lessig was thinking in pursuing his lawsuit arguing that states are constitutionally forbidden from making electors follow the will of their electorates, it was revealed at oral argument that it is, in fact, a galaxy-brained heighten-the-contradictions scheme:

The best argument for the plaintiffs is Alexander Hamilton’s Federalist No. 68, which envisioned electors as wise men who would exercise independent judgment. The best argument against the plaintiffs is everything else under the sun. From the early days of the republic, states have forced electors to side with the winner of the statewide vote. Nothing in the Constitution clearly prohibits this option; to the contrary, it grants states broad power over their electors. And the practical consequences of a decision for the plaintiffs would be pandemonium: It would leave the race in the hands of a few obscure partisans who would surely face intense lobbying after Election Day. In a close race, a few “faithless electors” could change the outcome, raising grave questions of the winner’s legitimacy.

Harvard Law professor Larry Lessig, who represents the plaintiffs, is aware of that possibility. Indeed, it seems to be his goal. Lessig wants to make the Electoral College so wacky and unpredictable that the entire country turns against it, then adopts a constitutional amendment creating a nationwide popular vote for president. 

“If rogue electors throw a presidential election to the losing candidate, the people will rise up and surmount the massive obstacle posed by Article V’s supermajority requirements to institute a national popular vote. If history has taught us anything, it’s that if the Electoral College misfires and installs a massively unqualified president, the people simply will not stand for it.”

Fortunately, the Supremes didn’t seem to buy it:

The justices appeared to be aware of this end goal on Wednesday. And they had no apparent interest in facilitating Lessig’s master plan.

“Those who disagree with your argument,” Justice Samuel Alito told Lessig, “say that it would lead to chaos”—that in a close election, “the rational response of the losing political party” would be “to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be.” Lessig told Alito he did not “deny it’s a possibility,” but it’s one that hasn’t happened yet—and even if it does, that’s the Constitution’s fault.

“I want to follow up on Justice Alito’s line of questioning,” an alarmed Justice Brett Kavanaugh said, “and what I might call the ‘avoid chaos’ principle of judging, which suggests that if it’s a close call or tiebreaker, that we shouldn’t facilitate or create chaos.” Lessig responded that “the likelihood” of a chaotic outcome “is extremely small.” Kavanaugh then flipped Lessig’s framing of the case. “You set this up” as “the states versus the electors,” he said. “But isn’t it also appropriate to think of this as the voters versus the electors, and that your position would, in essence, potentially disenfranchise voters in the state?” In other words, if electors can buck the statewide vote, aren’t they nullifying thousands or millions of ballots?

“It’s potentially true,” Lessig admitted. “That’s right, Your Honor.” But Lessig insisted that allowing states to control electors is the greater evil. “There is no tradition in America” of the government “exercising control over a voter, over an elector,” Lessig said. “Maybe in the Soviet Union,” but not the United States.

Arguments don’t get much more specious than “rules requiring delegates created by Rube Goldberg electoral system that has been an anachronism for more than 200 years to actually follow the will of a state’s voters is Stalinism,” but that’s what happens when you start down the “we must do something, and this is something” rabbit hole. Since, unlike gerrymandering, this wouldn’t have an obvious partisan valence, hopefully the indications at oral argument that the Court will reject this bullshit prove reliable.

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