The Supreme Court's opinion in Trump v. Anderson, as many expected, focused on the chaos that the justices thought would ensue if every state made its own decisions about its presidential elections. Both the per curiam majority and the concurrence in the judgment stressed the fact that a "state-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer…" The majority, after listing ways states might differ in their approaches, concluded that "[n]othing in the Constitution requires that we endure such chaos." The concurrence elaborated by complaining about "a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles," appealing to "the Framers' vision" of how presidents would be selected.
I disagree. First off, the concurrence's invocation of federalism in order to condemn a "state-by-state patchwork" is a bit odd. Federalism itself is a state-by-state patchwork. More importantly, lack of uniformity in the Electoral College is a feature, not a bug. Article II section 1 paragraph 2's conferral of power to "each state" to decide how electors are to be selected requires that we tolerate disuniformity. Indeed, it was designed for the very purpose of creating disuniformity: independent decisions by those in each state about what qualities were most important in a President. Article II requires that electors meet on the same day (paragraph 4: "which Day shall be the same throughout the United State") but in different states (paragraph 3: "Electors shall meet in their respective States"), so that nationwide collusion among electors would have been impossible in the eighteenth century. Alexander Hamilton explained in Federalist 68, "[A]s the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place." Where justices today see the vice of "a chaotic state-by-state patchwork," Hamilton saw the virtues of a "detached and divided situation." All nine justices in Trump v. Anderson–like all nine justices in Chiafolo v. Washington–thus turned "the Framers' vision" of the Electoral College on its head.
Posted at 2:07 PM