Thanks to Professor Natelson for his critique of “Bound Electors.” I’d like to provide a few clarifications and replies, leaving other points to readers’ own judgment after they have read the essay itself.
First, the essay actually declines to take any position on the question whether a state may dictate to Electors how they must vote. Instead, it suggests that the Supreme Court should rely on underlying constitutional principles to answer the question, including those of representative democracy and democratic self-government cited by Chief Justice Warren and now-Justice Kavanaugh in Powell v. McCormack and Bluman v. Federal Election Commission. It encourages the Court to develop a coherent theory of the relative powers of the people, the states, and the federal government in the electoral process, and it details a series of questions that the Court might consider in developing that theory.
For example, does anyone really believe that Electors are radically free to vote as they choose? Must Congress count known-bribed votes? Can anyone punish Electors for taking bribes, or would that violate the Electors’ freedom? Can anyone punish those who bribe Electors, or would that indirectly infringe the Electors’ freedom? If Michael Bloomberg bribes swing Electors to vote against President Trump in the next election, must we accept their votes and the resulting Democratic president? If not, what underlying constitutional principle allows us to reject the votes? Might that principle also justify state power to bind Electors to the result of the popular vote?
The federal government has invaded the express right of state legislatures to determine the manner of appointing Electors. Contrary to many founding-era practices and interpretations, federal statutes require states to accept some absentee ballots, prescribe the form of those ballots, and forbid aliens to vote for Electors or to be Electors. What principles justify those statutes, and might those principles give Congress the power to bind Electors or to delegate that power to the states?
Second, the essay details other early practices and public uses inconsistent with the Baca court’s historical and textual interpretation. These include electoral proxies; state laws ensuring that Electors faithfully perform their function; characterizations of bound, commanded, dependent and instructed electors; other elector provisions in the 1776 Maryland constitution that have never applied to Electors; and Samuel Stillman’s explanation in the Massachusetts ratifying convention that the president and senators alike would be chosen by the interposition of state legislatures as “the representatives and guardians of the people.”
Third, the essay notes Hamilton’s other expectations — or interpretations if you prefer — in The Federalist Papers that do not control constitutional law. Hamilton expected that the people would choose Electors, yet some state legislatures appointed Electors from the first presidential election until at least as late as 1876. Why should Hamilton’s expectation of Electors’ independence have any more influence than his expectation of their popular appointment?
Constitutional interpretation is not science and does not depend on weighing historical evidence for a position. We don’t tally historical expectations any more than “intention votes.” As the Supreme Court held in McPherson v. Blacker, “we can perceive no reason for holding that the power confided to the States by the Constitution has ceased to exist because the operation of the system has not fully realized the hopes of those by whom it was created.”
Both the federal and state governments have long exercised powers over Electors beyond those expressly listed in the Constitution. Electors might therefore have the power to exercise independent judgment and to accept bribes only in the absence of contrary state or federal law. Whether the federal or state governments have the authority to bind Electors is an open question whose answer does not depend on the expectations of Alexander Hamilton or of any other historical figures.
Posted at 6:45 AM