By now you’ve probably read about nationwide efforts to get electors to shift their votes away from Donald Trump, about recount efforts casting doubt upon the election outcomes in key states, and about electors going rogue. But there’s also a multitiered, multistate series of legal challenges to the election status quo that’s worth paying attention to, extreme long shots though they are.
Lawyers around the country have been filing motions either arguing that the Electoral College dilutes their votes or challenging state laws that force electors to throw all of their votes to the winner of their state. And a group first organized by Democrats called the Hamilton Electors, seeking to flip enough electoral votes to deny Trump the 270 votes he needs to officially become president, has agreed to seat a responsible Republican in his stead. The group is composed of actual electors, and at least two of them have filed one of the suits, in Colorado, described below. One of them, Bret Chiafalo of Washington state, puts the aims of the electors this way via email:
We believe it is our constitutional duty to follow Alexander Hamilton’s intent for the Electoral College. He wrote in Federalist 68 that the Electoral College should protect the presidency from one who is unfit, one who is under foreign influence, and one shows signs of becoming a dangerous demagogue. We do not believe that Mr. Trump passes these tests.
Harvard’s Lawrence Lessig has been making a similar case in the press, and this week he created the Electors Trust, which will offer free legal advice to any elector who wants to switch sides in violation of his or her state’s laws. None of the various groups is certain about its own chances for success, and some voice doubts about the alternative efforts. But credit to these folks for trying hard to use creative lawyering to unseat Trump on Dec. 19.
One of the very first challenges to the Electoral College system was filed by a California lawyer named John Birke, seeking a restraining order to bar all members of the Electoral College from voting for Trump. In a motion filed in federal court and naming all 538 members of the Electoral College as defendants, Birke claimed that the electors’ votes violate the Equal Protection Clause of the Fifth Amendment and the “fundamental principle of ‘one person, one vote.’ ” He argued that the structure of the Electoral College system meant that “a single vote for [Hillary] Clinton [would] be valued less than a single vote for Trump.” And he cautioned that “if Clinton’s margin expands as projected, that value will decrease to about .97” of each Trump vote.
Birke’s complaint was dismissed at the federal district court, on the theory that the Constitution itself specifies the Electoral College as a method of selecting the president and that there is no freestanding constitutional right of individual voters to elect the president. Birke has appealed that decision. He is not interested in flipping electors; he wants to get rid of the whole system.
Birke told me in an email that he approaches this problem “as a litigator, not a constitutional scholar,” and that the “effort must be based on the actual circumstances presented, i.e., that Hillary Clinton has more popular votes, yet stands not to be the one taking office as the next President.” He is, then, roundly opposed to efforts “to ‘flip’ or disqualify electors, to have particular state statutes declared unconstitutional, or offers (like that of Lessig) to defend them criminally if they don't vote for Trump, even if they advert to the principle of ‘one man, one vote.’ ” He adds that the folks trying to flip electors via litigation “are doomed to fail both legally and as a matter of public confidence, because they rely on the whims and attitudes of individual electors. A presidency determined by electors changing their minds would truly have no claim to legitimacy or legal sanction.”
Another group of lawsuits is attacking the laws in the 29 states that prevent electors from voting their own conscience. Sarah Howland, a New York lawyer, has now filed a complaint in Florida on behalf of a Clinton supporter, naming Trump supporter and attorney general Pam Bondi and the state’s 29 other electors. In her complaint Howland is clear that she “does not seek to dismantle the electoral college by judicial fiat” and instead argues that it is constitutionally impermissible that Florida electors can be mandated by law to cast votes for Trump on Dec. 19, because doing so will diminish the absolute value of a single vote for Clinton to less than one. In Howland’s motion, she seeks a declaratory ruling invalidating the Florida statute that binds electors “to vote in a national election for the candidate who won the popular vote of the state of Florida, despite that candidate’s losing the popular vote of the nation.” This is, she contends, “unconstitutional, under the Fifth and Fourteenth Amendment, and the fundamental principle of one person, one vote laid out by the Supreme Court in Baker v. Carr (1962) and Reynolds v. Simms (1964).”
In an email, Howland notes that this is a different project from Birke’s in that, “I am challenging the unequal representation that results in elections like this, but also arguing that the Electoral College should be returned to the way Hamilton intended, per Federalist No. 68, with electors deliberating and exercising discretion and judgment in casting their ballots.”
There’s now another suit, filed in Colorado this week, where two Democratic electors are trying to undo the Colorado law that demands that all nine electors vote for the winner of the state’s popular vote (Hillary Clinton in this instance). They seek to be freed up to vote for someone of their choosing, neither Clinton nor Trump. As they put it: “Plaintiffs may vote for a consensus candidate, other than Clinton or Trump, upon whom electors from both parties and along the ideological spectrum can agree, so as to prevent the unqualified Mr. Trump and Mr. Pence from ascending to the highest offices in the United States.” These electors aren’t relying on the Equal Protection argument, but rather on the idea that the whole purpose of the Electoral College was to allow electors to vote as they saw fit, and state laws forcing them to support a candidate renders the whole idea of electors “superfluous.” The Colorado plaintiffs claim that the Constitution intends for the Electoral College to “be a deliberative and independent body free to cast votes for whomever they deem to be the most fit and qualified candidates.” These plaintiffs allege that “nominees for President and Vice-President, Donald Trump and Mike Pence, represent a unique danger to the Republic and embody the very reason why the Founders created the Electoral College.”
These latter claims about the scope and point of the Electoral College are untested in constitutional law. Carolyn Shapiro, who teaches law at Chicago-Kent College of Law, contends that the Constitution is silent on whether states can bind their electors. As she puts it:
The Supreme Court often pays very careful attention to how powers are allocated. In the context of congressional elections, for example, the Supreme Court has been unwilling to give the states authority over who the people can elect, even though the Constitution is silent on the subject. Here, the Constitution expressly gives states the power to choose the electors but assigns them no authority over the electors’ conduct once they are selected. This suggests that the latter authority simply does not exist.
In her reading, states cannot bind electors and more than they can bind elected officials.
There are a few state supreme court decisions holding that state binding laws are unenforceable. The Alabama Supreme Court and the Ohio Supreme Court have found that no such coercion is permissible, with the Ohio court stating that “It is only by force of a moral obligation, not a legal one, that the presidential electors pledged to certain candidacies fulfill their pledges after election.”
It’s easy to argue that it’s the worst kind of Hail Mary to try to fight a system that has already been in practice in this election, and indeed for decades. But if the weeks following the election have taught us anything at all on the left, it’s that we are hopelessly ill-equipped to stop that juggernaut of corruption, nihilism, and self-dealing that is the incoming Trump administration and that fighting one another about how best to stop that juggernaut is not going to help. We don’t have a lot of case law articulating how “one person, one vote” plays out (the Supreme Court heard a Hail Mary appeal from conservative challengers on this very principle just last term and stood on the side of “one person, one vote”) or how the Electoral College impacts the right to vote. But the truth is that conservative litigators have been willing to throw crazy legal ideas against the wall time and again in recent years, and every once in a while the crazy idea sticks.
There is no time like the present for liberal lawyers to start arguing creatively. If President Obama left us anything at all that’s currently irrevocable, it’s a federal bench that might be sympathetic to some of these claims. So at this point I am all for the Hail Marys and the tilting at windmills and whatever else progressives can do to gum up the machinery of normalization. Progressives have been known to argue among themselves about whether every last lawsuit is pragmatic or effective or counterproductive and crazy. This time, let’s litigate first and ask questions later. When in doubt, file it.