Tuesday, December 6, 2016

The Case for the Electoral College

You would expect that a Harvard Law School professor would be the voice of reason and sanity. But, we live in difficult times, and, in a recent Washington Post op-ed Prof. Lawrence Lessig showed himself to be so totally overwrought about the election outcome that he recommended that electors defy their oath in the electoral college and vote how they pleased.

He counts among those who want to change the rules after the game is over. It’s a genuinely bad idea.

In brief, Lessig suggested that designated electors vote their conscience and not their commitments. By his idealized version of democracy—and it is not just his—the will of the majority of the people should prevail over the American constitution.

He is not alone in offering this viewpoint. And yet, if he takes it as seriously as he says, then he should be demanding that we scrap that other decidedly undemocratic institution: the United States Senate.

In any event, Lessig has just been schooled by The Economist, in its Democracy in America column. It is rare that a magazine takes on and brings down a Harvard professor, but the magazine did just that. As happens with most articles in that magazine, it is not signed.

The magazine accuses Lessig of “motivated reasoning.” By that theory people are often inclined to select out data that confirms their beliefs, ignoring facts that would tend to disprove them. Amusingly, for me at least, the notion of motivated reason, coupled with confirmation bias gives the lie to Freud’s claims that his patients provided material that proved the correctness of his interpretations. Suffering from motivated reason his patients were, in fact, conjuring up material that would prove him to be right. At times, of course, they did not believe it themselves.

Anyway, the Economist summarizes Lessig’s argument.

Point one:

First, he says, there is no rule in the constitution compelling electors to vote for the candidate who received the most votes in their respective states. In fact, nothing in the document suggests “that electors’ freedom should be constrained in any way”. True enough.

Point two:

Mr Lessig summons Alexander Hamilton’s argument in Federalist #68 that electors should vote based on “a judicious combination of all the reasons and inducements which were proper to govern their choice”. Electors are, to Mr Lessig’s mind, a “safety valve” in case Americans screw things up a bit too royally: “Like a judge reviewing a jury verdict where the people voted, the electoral college was intended to confirm—or not—the people’s choice”. 

The Economist says that Lessig has indulged a bit of sophistry, via a specious analogy:

Judges do not appear out of nowhere to put the brakes on jurors’ democratic sentiment: they are carefully chosen, or they are supposed to be, for their intellect, expertise and fair-mindedness. Electors are tapped on the basis of their loyalty to a political party—not because they are wiser or more reflective than anybody else. 

Lessig has misunderstood the electoral college. It is not a deliberative body populated by solons. It is populated by “faceless hacks.”

The Economist continues:

The electoral college isn’t a deliberative body at all: there is no discussion, just a secret-ballot vote. And each state’s electors vote in separate locations, never seeing each other or exchanging a word before doing their one-off constitutional duty.

Even if the 538 electors were somehow men and women of profound virtue and valour, blessed with a deep understanding of what America needs in a president, it would still be antithetical to democratic principles to untether their vote from the results of the actual vote on election day. But at least that looks like an enlightened aristocracy. How much more dangerous would it be to entrust the choice of the person to run the country to a few handfuls of ordinary people who have no particular clue?

Lessig believes that electors know better than the voters of their states. The Economist calls him out on yet another piece of sophistry:

Under what theory would a smattering of several hundred unvetted party loyalists have a better radar for brainwashed or criminal candidates than upwards of a hundred million voters? 

And also:

If anything, entrusting the choice of the president to a group that’s 0.0005% the size of the voting population would make it more likely, not less, that a nightmare candidate would win the keys to the White House. Mr Lessig would like the electoral college to be “reflective” and “conservative”, and assert itself only for “a very good reason”, but it's hard to square this charming image of an obedient collection of right-thinking adults with Mr Lessig's point that no constitutional constraint binds them. Without an overlord telling them when to rebel and when to go with the flow—or, perhaps, an Ivy League professor whispering in their ears—the electors seem singularly incapable of saving the nation from a loon, a fascist or an inveterate Twitter abuser.

Of course, Lessig trots out the argument that electors should vote for Hillary Clinton because she won the most popular votes. And yet, electors are not bound by the national vote tally. They are obliged only to vote for the candidate who won the majority of votes in their respective states.

Then, Lessig adds the patent absurdity that Hillary was “the most qualified candidate for president in more than a generation.” In fact, she lost the election because the American public saw her to be an incompetent fraud.

Besides, the Economist continues, the democracy cannot function unless people play by the rules. The system, Justice Oliver Wendell Holmes, Jr. once opined, is about playing by the rules, not necessarily obtaining justice.

Those who refuse to accept the outcomes are acting like pre-schoolers. The Economist explains:

Playing by the rules should result in the spoils that rule-following doles out to all involved parties. To tweak an admonition often directed to pre-schoolers, you get what you get, and whether or not you get what you want, you don’t get to upset the structure under which everyone was operating in the first place.

Hail Mary attempts to thwart a Trump presidency—whether it’s throwing good money after bad in expensive recounts that have no real chance of changing the outcome or reimagining the nature of an old and weird institution with roots in the protection of slave states—are understandable. But they are desperate, and the latter is dangerous. Electors are better off doing what they were haphazardly appointed to do under America’s unique and all-too-flawed electoral set-up: represent the vote totals of their home states.

Desperate people say desperate things. When serious law professors let themselves be carried away on a wave of emotion, what hope is there for the rest of us?


Ignatius Acton Chesterton OCD said...

And to think if Hillary had won, there would be nary a peep about any of this.

Trigger Warning said...

I'm not sure why anyone would think Harvard Law would be a repository of "reason and sanity" - or even sobriety - given the presence of tenured legal loons like Derrick Bell (RIP), Lani Guinier, and Lieawatha Warren on the faculty. And one mustn't forget that darling of the Left, Larry Tribe, who wrote a Law Review article (with a guy named Barook Obimlo or something mentioned in the obligatory student lackey footnote) arguing that Constitutional jurisprudence should take the "perspectives" of Einsteinian General Relativity and quantum mechanics into account.

But hey, go for it boys and girls. If you think you can get 38 states to ratify a Constitutional Amendment abolishing the Electoral College (which, by the way, intentionally benefits the states), by all means, give it a shot. Meanwhile, I'll pop some corn and watch the action, providing a little color commentary along the way.

Sam L. said...

"You would expect that a Harvard Law School professor would be the voice of reason and sanity." I useta would, but got over that some years ago. They're all Bozos on that bus (h/t, The Firesign Theater).

"Desperate people say desperate things. When serious law professors let themselves be carried away on a wave of emotion, what hope is there for the rest of us?" They only CLAIM to be serious. Should I believe him/them, or my lying eyes? I'm going with my eyes.

Jim Sweeney said...

Why do losers like Lessig and his ilk disregard the undisputed fact that we all pledge allegiance to this REPUBLIC, not this democracy? Don't they understand the difference and that is why the Founders set up the Electoral College?

Apparently not.

Ares Olympus said...

The Lessig appeal is here:

I see Lessig is calling for Republican electors to install Hillary Clinton as president, so yes, that is clearly self-interested, AND clearly unrealistic, first since Clinton's 48.2% of the vote is still less than 50% (so no majority mandate), AND even if she won 50%, pissing off 46% of the population for following the rules would be a bad idea. AND finally no self-respecting republican elector would vote for a Democrat when there are plenty of Republican alternatives to consider - Mike Pence, John Kasish, Ted Cruz, Marco Rubio, Mitt Romney, the list is almost endless.

But we do have at least one Republican elector, from Texas, calling on a rebellion, and suggesting Kasich as a starting idea. (Kasich actually said publicly for electors to NOT vote for him.)

And we have a number of Democratic electors willing to vote for a more moderate republican alternative to Trump. And if 37 republican electors defect, the top-3 go to the (GOP controlled) U.S. House to pick a winner.

And incidentally another cool Republican Texan is apparently having fun replying to Democrats begging for Hillary's vote.
And he has a FB account where he shares some of the letters, in addition to his regular blogging.

I'm betting no more than 12 faithless electors will happen on December 19th, and it would be even cooler if Clinton's electors try to "reach across the aisle" with their own compromise republican votes, just in case.

For me the ideal is we need to make SURE everyone knows "Something is wrong with this country", and "Donald Trump is dangerous and unfit." And whatever public testimonies made by brave faithless electors after the vote may offer starting arguments for Trump's likely impeachment before his 4 years are up.

Taking a stand is good, even if the Alt-right decides you're a traitor and shoots you dead before Christmas. That sort of terrorism also needs to be tested by brave souls.

Ares Olympus said...

p.s. The last time there no majority winner in the Electoral college was 1824, with 4 candidates who won state popular votes to compete in the electoral college.

So leader Andrew Jackson got 41% of the popular vote AND the most electoral votes, 99 (38% of 261 total). John Q. Adams next had 31% of the vote and 84 electoral votes. And two other candidates had 13% and 11%, but the 11% candidate had more electoral votes 41 to 37.

The top-3 in the electoral college went to the U.S. House for a vote, and the 4th place candidate who was eliminated, threw his vote to 31% candidate John Q and helped him win the election.

But of course justice was swift, and Andrew Jackson beat John Q in the 1828 rematch.

Wow, that would be embarrassing, if the 2016 house republicans voted against Trump, and then Trump went on an anti-republican rampage for the next 4 years, starting the Whig Party perhaps, and winning the presidency back in 2020!

Stranger things have happened. And these are strange times!

Ignatius Acton Chesterton OCD said...

Well, Ares, it sure is a good thing that Kasich told Electors not to vote for him. That seals it... John Kasich will not be president. Whew! I was getting a little nervous there.

Anonymous said...

There they go again!

They're smarter, better, more rational than the common herd.

The Founders? pffft Dead white slaveowners. Constitution? Dead words on paper.

Yeah. Let's have an Oligarchy. Yeah, that's the ticket! -- Rich Lara

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