No, Congress can't pass a law permitting a special election for president

UPDATE: Please read the update at the end of this piece! Several thoughtful responses have been sent to me, and I am reconsidering whether I have this right at all! Such is the half-baked musing of a blog... I deeply appreciate feedback.

I recently read a piece on the crisis of presidential succession. The logic of the piece went something like this: suppose Russia interfered so greatly in our presidential electoral process that Donald Trump, Mike Pence, Paul Ryan, Orrin Hatch, Rex Tillerson, and everyone else in the ordinary line of succession had their legitimacy cast into doubt, a "stolen" election? Congress ought to pass a law to address this point--in particular, if Congress removes the President and Vice President (N.B.: this is, of course, the same irretrievably-corrupted Congress in which Mr. Hatch is the President Pro Tempore and Mr. Ryan is the Speaker), it should be authorized to call (N.B.: again, Congress is controlled by the same corrupt Russian stooges) for a special presidential election.

Because others appear to be taking this argument seriously, it's worth noting that it should not. Congress lacks the power to call for a special election for president.

The purported ground for the exercise of this power arises from Article II, Section 1, Clause 6--at least, the portions not altered by the Twenty-Fifth Amendment. The relevant provision reads: ". . . and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected."

The power of Congress is one to enact a law to "provide" for the case of the loss of both the President and the Vice President. But that "Law" may "provide" one thing: "declaring what Officer shall then act as President." That is the extent of Congress's power in this area, at least under this Clause.

The remainder of the Clause does not empower Congress to act further. "[S]uch officer shall act accordingly," the Clause explains, "until the Disability be removed, or a President shall be elected." Both are in the passive voice, and, I think, deliberately so. The last provision, "a President shall be elected," then would refer to the ordinary powers of Congress to "determine the Time of chusing the Electors, and the Day on which they shall give their votes." But as the term of office is for "four Years," Congress's power is, I think, limited to this--the "term" of the President ends after four years (now on January 20th, see Amendment XX, Section 1), and the Officer "act[s]" as president "until" the next election.

The attempt to read into these provisions a power of Congress to call a special election is still more deeply flawed. The Constitution speaks of the power to fill vacancies with the special term "writ of election." There is no such power of Congress to issue writs of election for vacancies in the office of President and Vice President.

Consider the language of the Constitution for the House. Article I, Section 2, Clause 1 provides, "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . . ." And in Clause 4, "When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies." (Emphasis added.) The ordinary process differs from the power during a vacancy, which is to issue writs of election.

When legislatures elected Senators, there was a similar provision, albeit not for writs of election. Article I, Section 3, Clause 1 provides, "The Senate of the United States shall be composed of two Senators from each state, chosen by the Legislature thereof . . . ." And in the next clause, ". . . if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies." There is specific new power to fill vacancies if they arise.

The Seventeenth Amendment works the same way as the House's language. "The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years . . . " In the second clause, "When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies . . . " (Emphasis added.) Again, a specific enumeration of power in the event vacancies arise.

Congress has no such power to issue writs of election when vacancies arise in the office of President and Vice President. Indeed, Congress's power is carefully (and understandably) limited to choosing successors who can "act" as president until the next election. It has no power to otherwise fill vacancies.

Indeed, Congress's power to regulate presidential elections is even more limited than its power to regulate congressional elections. The Times, Places and Manner Clause permits Congress to "make or alter such Regulations" relating to the "Times, Places and Manner of holding Elections for Senators and Representatives." But its power to regulate the selection of presidential electors is to "determine the Time of chusing the Electors, and the Day on which they shall give their Votes." Even if one believes that the power to issue writs of election for vacancies is a "manner" of regulation an election ([Robert G. Natelson offers evidence of this][1]), Congress lacks such power in presidential elections. Indeed, such a lack of power in presidential elections is one of the great reasons Congress enacted the Twenty-Fourth Amendment to abolish poll taxes in federal elections--many in Congress who thought Congress could do so for congressional elections under the Times, Places and Manner Clause believed they lacked the power to do so in presidential primaries and the selection of electors. (This is part of ongoing research I hope to share soon.)

[1]: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1751720

So Congress can't just pass a law permitting it to call for a special election to redo the presidential election if it so desires. The power to issue a writ of election to fill the vacancies in the office of President and Vice President if they arose would need to occur by constitutional amendment.

(UPDATE: I've learned that there is much more history here than my analysis offered! Congress in 1792 enacted a law that would permit it to call for a special election in the event of a vacancy. There is apparently a rich body of debates surrounding this--suggesting I should do more research before blogging! Nevertheless, I feel fairly confident my "writ of election" point is a significant textual one, even if Congress has previously disputed it. More to come one day!)

No, Gorsuch didn't "misstate" Citizen United's holding

With all due respect to Rick Hasen, I don't think Judge Neil Gorsuch "misstated" the holding of Citizens United v. FEC. Here are a couple of statements that arose during questioning:

Q: In Citizens United Justice Kennedy indicated the restrictions on campaign donations can only be justified by concerns about quid pro quo corruption. Now President Trump has said that the reason he made campaign donations was so that when he needs something from them they're there for me. His campaign contribution favors. Shouldn't Congress not the courts make the determination about the potential for corruption? Especially if we're talking about quid pro quos.

A: Senator, I think there is lots of room for legislation in this area that the Court has left. The Court indicate that if proof of corruption can be demonstrated that a different result may obtain [sic] on expenditure limits.

. . .

I think Citizens United made clear the quid pro quo corruption remains a vital concern and is subject for potential legislation and I think there is ample room for this body to legislate even in light of Citizens United. Whether it has to do with contribution limits, whether it has to do with expenditures limits, or whether it has to do with disclosure.

One basic problem is that Senator Patrick Leahy's question is almost incomprehensible. Recall that Citizens United was not about "campaign donations," (i.e., contributions to political campaigns), or even about contributions at all, but about independent expenditures. The quotations from Trump are a non sequitur.

So Judge Gorsuch attempts to return the discussion, and here it's apparent it's about campaign finance quite broadly Is there "lots of room for legislation," including that some "expenditure limits" may be upheld if there is "proof of corruption"?

I would argue yes on at least three fronts.

The first is expenditure limits (speaking about expenditure limits generally) have been upheld by courts, notably in Bluman v. FEC, which affirmed a ban on political expenditures by foreign nationals. (This is the reason why Justice Samuel Alito mouthed "not true" at the State of Union when President Barack Obama stated that Citizens United would "open the floodgates" for "foreign corporations to spend without limit in our elections.") As Mr. Leahy's question was broadly construed, Judge Gorsuch's answer is, I think, appropriately broadly construed.

Second, even narrower, I think it's still the case after Citizens United that some such expenditures could be restricted. For instance, if Congress demonstrates that the expenditures aren't truly "independent" but coordinated, they can squarely be regulated (consistently with Buckley v. Valeo). That is, there's still room to demonstrate that some expenditures aren't truly "independent."

Third, and still narrower, I think there's still room after Citizens United, with the appropriate record, to regulate truly independent expenditures. According to the majority in Citizens United:

The McConnell record was "over 100,000 pages" long, yet it "does not have any direct examples of votes being exchanged for . . . expenditures." This confirms Buckley's reasoning that independent expenditures do not lead to, or create the appearance of, quid pro quo corruption. In fact, there is only scant evidence that independent expenditures even ingratiate.

So now begins a construction of what this Court's holding means. Here there's language suggesting a lack of evidence demonstrating corruption justifying regulation. Does it mean that Congress is forever prohibited in this area? Professor Hasen argues yes, citing American Traditional Partnership v. Bullock, that the Court "would NOT consider evidence of corruption to justify a spending limit."

But that's not what Bullock holds--at least, in my reading of the case. Bullock states, "Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case." Which expressly leaves open the possibility of meaningful distinguishing of the case! So the possibility remains open for regulation even after Citizens United.

There are three extremely important caveats to my line of reasoning.

The first is the unrealistic possibility that Congress would even legislate to regulate independent expenditures in the near future. But, of course, Judge Gorsuch is speaking to the possibility of legislation concerning expenditures.

The second is the unrealistic likelihood that the Court would ever view any record as "meaningful[ly] distinguishing" Citizens United, or offering sufficient evidence to suggest that quid pro quo corruption does exist concerning independent expenditures. But that unrealistic possibility of the acceptance of the Court is not expressly foreclosed by Citizens United's language--that is, Citizens United does not hold, as a matter of First Amendment doctrine, that independent expenditures can never be regulated. While some kinds of expenditures may well be regulated post-Citizens United, I imagine there's a matter of dispute about what kind of record would suffice for particular types of expenditures.

The third is that I probably am inclined to agree with a truncated, alternative take Professor Hasen offers, which is that Judge Gorsuch is "trying to soften [the] harshness" of Citizens United with his phrasing. And part of this is whether the real question posed is Citizens United in particular--independent expenditures from domestic corporations--or campaign finance quite generally. I think, to return to the beginning, the confusion of Mr. Leahy's question and the breadth of Judge Gorsuch's answer suggest that, charitably read, this answer is wholly appropriate. For those who are very specifically interested in the narrow issue of Citizens United, Judge Gorsuch's answer is a rather generous interpretation of the ability of Congress to regulate in this area, but, I think, still accurate. And for those who are interested in the more general campaign finance universe as Mr. Leahy's question suggests, it's wholly accurate and entirely defensible.

Would doubling the size of the House have affected the Electoral College outcome in 2016?

A common mantra after the presidential election sounded something like this: "California is so much larger than Wyoming, but a vote cast in California has only a third of the value of a vote cast in Wyoming in the presidential election." Or something like that. This, in turn, is often a proxy for criticizing the Electoral College.

The Electoral College allocates electors based on the total number of members of the House and Senate each State has--and, as each State is guaranteed at least one House representative, no matter how small, and exactly two Senators, no matter the size, each state will receive at least three electoral votes. With a House of 435 members, a Senate of 100 members, and 3 votes for the District of Columbia, we get 538 electoral votes, 270 needed to win.

In the 2016 presidential election, that looked something like this: Californians cast over 14 million votes for president. Given California's 55 electoral votes, that works out to about 257,847 votes cast per electoral vote. In Wyoming, there were 255,849 total votes cast for president. That works out to about 85,283 votes cast per electoral vote. And that's just about a 3:1 ratio. (Granted, the House is apportioned based on total population, not ballots cast, but let's stick with this metric for now. And, of course, this is a rather crude approximation of how to "weigh" votes, considering that these are winner-take-all states rather than votes-per-elector, but it has an understandable simplicity and rhetorical appeal.)

(Here, too, it may be worth noting that this fairly grossly overstates a single voter's power. Put in reverse, a California voter is providing 0.0000039 of the total value of a single electoral vote; a Wyoming voter is providing 0.0000117.)

In some ways, the real problem people have with this disparity is the United States Senate itself. But much of the reason that this disparity exists is because the size of the House of Representatives has not increased since 1911. The Reapportionment Act of 1929 capped the size of the House at 435 members, fixing it as it was in 1911--and, as a result, capped the size of the Electoral College. It meant that disparities in the Electoral College would increase as populations shifted.

Roughly doubling the size of the House to 871 members would give better representation based on total population. And it would do so without any need for a constitutional amendment--a simple statute from Congress could help equalize this spread. But would it have changed anything in the 2016 presidential outcome? Not really-it would smooth out some of the disparities but have no meaningful effect on the outcome (except to actually widen the margin of Donald Trump's victory).

Using the Equal Proportions Method, we can fairly quickly calculate how these 871 seats would be allocated based on the 2010 census. The smallest state in this scenario receives two House members. We'd then add in 100 electors for the Senate, another 4 electors for the District of Columbia, and come to a nice round 975 electoral votes: 488 votes to win. And like the five fictional Electoral College outcomes I provided recently, we can recalculate the 2016 election after our newly-constructed House.

By giving California a whopping 104 members in the House--and 106 electoral votes--we'd see the 2016 totals drop to 133,788 votes cast per electoral vote. In Wyoming, which would get a second member in the House and 4 electoral votes, it would have 63,962 votes cast per electoral vote. The California:Wyoming ratio would drop from 3:1 to 2:1. That would certainly improve the disparity, but hardly cure it.

And despite improving the disparity, we see little change in the overall outcome. (I assumed a winner-take-all in each state, despite Maine's and Nebraska's systems.) It yielded 547 electoral votes for Mr. Trump to 428 for Hillary Clinton--a comfortable margin of victory, and by raw pledged electors much larger than his actual 2016 victory. So while it might help reduce some of the rhetoric regarding disparities in vote power across states--and improve some of the actual voting power--it wouldn't offer any dramatic change to our system.

I have the complete breakdown of electoral votes below. If you'd like to reverse-engineer the House figures, simply subtract two from each state.

---

Size of House of Representatives Doubled, Winner-Take-All
	Clinton	Trump
Alabama		16
Alaska		4
Arizona		18
Arkansas		10
California	106
Colorado	15
Connecticut	13
Delaware	4
District of Columbia	4
Florida		51
Georgia		27
Hawaii	6
Idaho		6
Illinois	40
Indiana		21
Iowa		11
Kansas		10
Kentucky		14
Louisiana		16
Maine	6
Maryland	18
Massachusetts	22
Michigan		33
Minnesota	17
Mississippi		11
Missouri		19
Montana		5
Nebraska		7
Nevada	8
New Hampshire	6
New Jersey	28
New Mexico	8
New York	61
North Carolina		30
North Dakota		4
Ohio		37
Oklahoma		13
Oregon	13
Pennsylvania		40
Rhode Island	5
South Carolina		14
South Dakota		4
Tennessee		20
Texas		66
Utah		9
Vermont	4
Virginia	24
Washington	20
West Virginia		8
Wisconsin		19
Wyoming		4
Totals	428	547

The coming battle over election system security in the United States

What's the best way to protect election systems in the United States? Is it a good thing that we have a decentralized federalist system, where the states vary, and even the counties within states vary, to some degree, preventing easy singular takeover or attack of our election systems? Or should we strive for greater oversight and best practices through more uniform standards that can be implemented across the country at the federal level?

The battle is fascinating because it eschews typical partisan lines and instead reflects deep concerns from two different groups--state secretaries of state who run elections, worried about needless cost, unnecessary regulations, and changing standards outside of their control; and federal security officials, who view different, sometimes international, threats as an essential reason for greater federal control of our elections infrastructure.

On January 6, 2017, a lame-duck Secretary of the Department of Homeland Security, Jeh Johnson, declared that election systems in the United States would be "critical infrastructure." DHS emphasized that this is not a "federal takeover, regulation, oversight or intrusion" for elections. Instead, it is designed to provide state and local officials with better assistance from DHS.

The next day, a member of the Election Assistance Commission, Christy McCormick, quickly fired back with a sharp critique of the designation, identifying problems with the scope of the designation. Compliance is purportedly "voluntary," but it appears that DHS may withhold certain information that would otherwise be available if states fail to comply. The scope of the order is unknown--indeed, it appeared to Ms. McCormick that the new things provided from the order were already available to state and local officials who requested it of DHS. And she suggested that political partisanship was involved.

This might have all the trappings of a Democrats-want-more-federal-oversight-Republicans-don't type of battle.

But soon, state secretaries of state, regardless of their partisan affiliation, began to express concern. Consider Alex Padilla of California: it "raises important questions.," and the limits are "unclear," particularly given a new incoming administration.

Soon, the National Association of Secretaries of State ("NASS") would adopt a resolution formally opposing the designation, noting problems arising from the designation, such as oversight of items that are not subject to cybersecurity threats; political opposition to the designation in Congress; and unanswered questions.

When NASS pressed DHS regarding the designation, the new administration expressed that it would continue to support the designation. Members of the Georgia legislature have already introduced a resolution calling for redesignation.

It remains to be seen what this designation actually does. As the DHS letter notes, much information was shared between DHS and the states. The designation allows from more "detail" and "tailoring," DHS explains--what value that is, I think, remains to be seen.

But NASS is concerned, understandably, that these "voluntary" commitments may no longer look so voluntary. And is that a good thing? It's easy to consider the benefits to greater federal oversight, and its significant costs. And we're observing the key stakeholders on each side of this debate preparing for a longer battle over the future of election system security.

So, in a only-somewhat-false dichotomy, what's better? A future of state-controlled, decentralized systems difficult for any single cyber threat, but potentially at greater risk in individual jurisdictions that fail to maintain sufficient standards? Or a future of federal oversight of election systems designed to provide the best practices and standards with superior procedures and oversight, but with likely higher costs, uniform standards offering less local control and flexibility, potentially increased politicization of federal standards, and greater nationwide vulnerability? I certainly can't answer it (although I think Zip disks aren't a part of future election systems security), and it'll take time to see how this relationship between DHS and NASS plays out. Let's hope the battle between them yields the best possible result for keeping our election systems safe.

The #Calexit ballot proposal is unserious in a number of ways

I had perhaps foolishly entertained the notion that the #Calexit "independent California" movement might be a serious attempt to declare independence from the United States, and I described the hurdles facing a prospective ballot measure. I've now read the actual proposal, and it's entirely unserious, in a number of different ways, worth noting now that the proposal has been approved for circulation. I would read the text of the proposal first, which is shockingly minimalist. It does two things: amends the California Constitution to eliminate the provisions that California is "inseparable" from the United States and that the Constitution is the "supreme law of the land"; and calls for a "plebiscite questions" in 2019 on independence, which, if favorable, would require the governor to apply to the United Nations.

There a lot--a lot--of problems with this proposal. To name a few:

First, the initiative repeals the constitutional provision that "The state of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the law." Never mind the dozens of other places in the California Constitution that refer to the United States of America or the United States Constitution--for instance, requiring state legislators to be citizens of the United States (Article IV, section 2) and the Governor (Article 5, section 2).

Second, the initiative makes no attempt to call for a constitutional convention, which would be necessary for this and other reasons--for instance, no need to elect United States presidential electors, senators, and representatives.

These problems alone indicate that #CalExit is not a serious independence proposal. Proponents claim this would be a "first step," but it is hardly any step at all--except, I suppose, an opportunity for earned media to treat the movement seriously despite the lack of legal impact of the movement.

Third, the initiative provides, via statute, for a "plebiscite question" given to the voters with the condition that at least 50% of registered voters participate for it to pass. California Constitution Article II, Section 10(a) provides no minimum participatory threshold for an initiative to take effect.

Fourth, the initiative provides, via statute, for a "plebiscite question" given to the voters with the condition that at least 55% vote "Yes." California Constitution Article II, Section 10(a) requires only a "majority" to pass initiative statutes.

Fifth, ballot initiatives are now to occur on the first Tuesday following the first Monday in even-numbered years, Cal. Election Code 9016. The initiative provides for elections in March of odd-numbered years and does not amend or refer to 9016 to account for this change. (Indeed, the California legislature recently amended this provision to ensure that major initiatives and referenda would occur in instances with higher voter turnout, March of odd-numbered years being among the lowest of turnout.)

Sixth, the "plebiscite questions" likely exceeds the power of the people of California to behave via initiative. California courts regularly conclude that the initiative power, even under "the most liberal interpretation," limit the power to the adoption and rejection of "statutes." Such conclusions come from AFL v. Eu and many California state appellate rulings. Declaring that the governor must behave in a certain way--that is, petitioning the United Nations for statehood--is not really a legislative enactment embraced by statute.

Seventh, and relatedly, the people of California may lack the power to direct the Governor to do something. For instance, in Widders v. Furchtenicht (2008), a California appellate court concluded that the initiative power was inappropriate to direct the city council to exercise its "informed judgment" in promulgating laws about housing and retail stores.

It's possible that some would consider the amendment to be a "revision" of the state's constitution, but I highly doubt that removing some largely precatory language--part of which is already redundant of the federal Constitution, anyway--amounts to a revision.

It's also worth noting these problems are not necessarily fatal to the measure appearing on the ballot. California courts in particular are reluctant to engage in pre-enforcement challenges on the merits of a proposed initiative, in the hopes that such questions might be mooted if the initiative fails to get enough signatures or fails at the ballot box.

Some of the problems outlined above might be cured with statutory construction that would give effect to the challenged provisions. Others might simply be notes about the limited nature of this question left for subsequent legal amendments. But they are, I think, serious reasons why the #Calexit proposal is decided unserious.

In today's WSJ: "Faithless Electors: Now It’s Up to Congress"

In today's Wall Street Journal, I have an opinion piece entitled, "Faithless Electors: Now It's Up to Congress." It begins:

The 538 members of the Electoral College convened Monday and cast a majority of their votes for Donald Trump for president and Mike Pence for vice president. When Congress convenes on Jan. 6 to count the votes, it will mostly be a formality. But its decision to count or exclude the votes of some “faithless electors” will set a precedent for future elections.

And it concludes:

These are challenging questions that cannot be answered by a judge or a court. Only Congress decides what to count. And while it won’t change the outcome of this election, its decisions will affect how states handle faithless electors in the 2020 election and beyond.

The Electoral College won't stop Trump--but it may change how political parties pick electors in 2020

The presidential election is quickly approaching--on December 19, in state capitals around the country, presidential electors will assemble and vote overwhelmingly for Donald Trump and for Hillary Clinton. It is almost guaranteed that Mr. Trump will secure at least 270 electoral votes, the minimum necessary, and probably something close to the 306 electoral votes he is presumed to receive. And while there have been discussions among "Hamilton Electors" to vote for someone else, the Constitution is designed to thwart such conspiracies across states, and Mr. Trump's presumptive lead is all but insurmountable. (Please note that while the Electoral College can elect someone other than Mr. Trump, or can elect no one at all, I am simply describing, as the links above suggest, why it is, among other things, a lead that is "all but insurmountable.")

Last week, five presidential electors in three states have filed lawsuits in federal courts seeking to strike down laws that purport to bind electors to vote for the candidates they are pledged to support. They seek to ensure that they have the right to vote for whomever they wish, regardless of the candidate they are supposed to support, and to have a court conclude that such laws instituting criminal or civil penalties are unconstitutional. (For the record, I agree that such laws may be unconstitutional.) The litigation seeks to limit the scope of Ray v. Blair, the 1952 Supreme Court decision that affirmed the ability of states to impose (non-binding) pledges on presidential electors. (The enforceability of such pledges was left for another day.)

But litigation occurs in a particular context, and there are significant procedural problems to these claims. Those problems may prevent courts from reaching the merits of such claims. These claims all seriously struggle from the likely defense of laches, as the electors have brought claims just days before the Electoral College is scheduled to meet--when they have been nominees for many months, and when they knew they would be called to serve as of November 9. It is not immediately obvious that the state laws in California and Colorado empower state election officials to remove "faithless" electors from their offices, which suggests that abstention might apply, or simply the application of a canon of statutory interpretation that invokes the constitutional avoidance doctrine. The pleadings of some do not make it obvious that the electors intend to violate their pledge, only that they want to liberty to do so, which may (perhaps) lead to ripeness issues or even the failure to state a claim.

But even setting these procedural issues aside, the curious nature of these claims is where they have been filed. They are purporting to be an "anti-Trump" movement. But, these are Clinton electors in states carried by Mrs. Clinton! That is, their movement would undermine the Democratic candidate's ability to succeed in the Electoral College! And even total victory in these states would yield a grand total of zero Trump electors voting for someone other than Mr. Trump!

Now, I suppose there are two long-game purposes in this effort. The first is for these electors to force a kind of "national conversation" about the independent judgment of electors and to (quite publicly) encourage Trump electors to join them and vote for someone other than Mr. Trump. (Of course, they were already voting for someone other than Mr. Trump.) While freeing Clinton electors from their pledge has zero impact on the bottom line--if every Clinton elector voted for, say, John Kasich, then Trump still wins with 306 electoral votes--it could spark discussion with other electors.

The second is that a ruling in one court, perhaps appealed to a circuit court or even the Supreme Court, would have a ripple effect in other jurisdictions with Trump electors. Given the procedural hurdles already in place, it is unlikely that this could happen, but remains a possibility.

Of course, further buried within these electors' lawsuits is that they have largely been filed by former (and, perhaps, current) supporters of Bernie Sanders, some of whom before even Election Day expressed public displeasure at the prospect of casting votes for Mrs. Clinton. While the salutary effort is something in the vein of "anti-Trump," in reality it seems to be driven more by anti... well, Democratic establishment, at least for these particular Colorado and Washington electors.

(It's also worth noting that multiple Trump electors have expressed opposition to Mr. Trump--two electors, one from Georgia and another from Texas, intend to resign when the Electoral College meets by refusing to show; a third, from Texas, once supported Mr. Trump but has since written a piece published in the New York Times opposing him.)

So these lawsuits are not really designed to stop Mr. Trump from securing 306 electoral votes (or, really, the 270 electoral votes he needs to win). But it has created some rather curious alliances. For instance, the Republican elected officials called to defend the law in Colorado have come out quite strongly against the plaintiffs--that is, these Republicans are aggressively defending Mrs. Clinton's electoral vote total in Colorado. And the Colorado Republican Party has intervened in the case--and the Colorado Democratic Party has not.

That said, it is, I think, less curious than one might expect, at least the behavior of Republicans and when viewed through a (perhaps) Rawlsian framework. One might take the myopic view and claim that Colorado Republicans are trying to defend Mr. Trump's election, but that strikes me fairly unlikely--consider the two long-game purposes I enumerated above, which are exceedingly remote; and consider that the direct impact of the litigation would undermine Mrs. Clinton's position far more than Mr. Trump's.

Instead, consider what it would mean in a state--any state, regardless of your partisan preference--if you had fairly settled expectations of the roles of electors, and even a law that carried some generic threat against electors who acted against their pledge, and those settled expectations were called into question. As a member of a political party or a loyal partisan official, such a result would be fairly horrifying. After all, it would mean that your formerly-loyal slate of electors would now be open to influence; and even if your party's slate of electors did not win this particular election, it would also affect your slate of electors in future elections when you did win.

Despite the fact that electors may prefer independence (and that the Constitution, in my view, mandates it!), parties certainly do not prefer it. It is a reason they are empowered in most states to choose the slates of presidential electors. And it is a terrific loss of power if those electors now expect to act freely--indeed, so freely that they may undermine the party's nominee. The rational behavior of partisan officials, then, would be to defend such laws quite vigorously, regardless of partisan affiliation.

I expect, then, that this behavior of presidential electors will fairly significantly alter the behavior of political parties selecting slates of presidential electors in 2020, particularly if parties are worried that the legal pledges and settled expectations from previous elections have been called into grave doubt. Party reforms are some of the easiest reforms, because they require no new laws. But I would expect, at least in some jurisdictions, to see to following changes.

First, I would expect to see delays in the selection of slates of electors. Parties typically nominate slates of electors in the spring or summer, often before the parties' nominating conventions (and sometimes even before the parties' nominees are known). But in most states, such slates need not be submitted until just weeks before the November election date.

Second, parties are likely to engage in far greater vetting of such nominees. By postponing the selection process, parties might be more inclined to choose electors who have already gone on record expressing support of the party's presumptive nominee.

Third, parties might institute more control over who qualifies as electors for their party. They often include rules that one must be a member of that party, such as someone who voted in that party's primary. But they may require longer periods of party affiliationor greater demonstration of loyalty before qualifying as an elector.

Fourth, parties may defer to the presumptive nominee in selecting slates of electors. It's understandable why Bill Clinton was an elector in New York, of course! And greater control to candidates would ensure greater loyalty for nominees.

It is the case, I think, that these electors' efforts to sue to undo state pledges will likely fail; and that even in success the Electoral College will not meaningfully affect the settled expectations of the outcome of this election. But after all this, when the dust settles, I anticipate some significant change in behavior from political parties to fend off future efforts from electors to undermine their own preferences.

New effort (doomed to fail) calls for presidential electors to collectively exercise independent judgment

Presidential electors will meet in state capitals around the country on December 19. They’ll vote for the next president and vice-president. We assume most of them will vote for Donald Trump and Mike Pence. But a group of anti-Trump electors, mostly Democrats, have sought to form an alliance around a consensus candidate who is neither Trump nor Hillary Clinton. They remind us that electors are supposed to exercise “independent judgment.” They hope to collectively exercise independent judgment--something of an oxymoron.

But the Framers expressly designed the Electoral College to thwart such schemes. They’ve repeatedly failed in the past, and they’re all but doomed to fail this year.

The Constitution's design

During the federal convention of 1787, the Framers worried that selection of the president would be the subject of political “intrigue” or fall into the hands of a “cabal” of decision-makers. Alexander Hamilton explained in Federalist 68 that the Electoral College would avoid such “mischief.” If electors assembled in a single place, Hamilton noted, it would invite “heats and ferments,” “cabal, intrigue and corruption,” and a selection process gone wrong.

Instead, electors from each state would assemble in that state, separated from the electors of all the other states. They would meet on the same day across these states, “detached and divided” from another. Hamilton emphasized that that could not engage in any “combinations” that would affect their independent judgment. Electors would vote for a president and a vice president based upon the deliberations in their own states, not from any agreement among electors.

Early attempts for electors to conspire with one another across the states failed badly. As originally designed, electors voted for two candidates: the candidate with the most votes became president, and the candidate with the second-most votes became vice president. Federalists in 1796 wanted John Adams as president and Thomas Pinckney as vice president. Electors tried to conspire to ensure that Pinckney received fewer votes than Adams; otherwise, a tie would be sent to the House of Representatives. They also needed to ensure that both Adams and Pinckney secured more votes than rival Thomas Jefferson.

But too many Adams electors cast their second votes for someone other than Pinckney. In the end, Adams secured 71 electoral votes and Pinckney 59—but Jefferson received 68 electoral votes, good enough for second place and to serve as Adams’s vice president. Federalists had been thwarted by the decentralized design of the Electoral College.

The Twelfth Amendment permitted electors to designate which candidate would be the president and which would be the vice president. And no effort to thwart a candidate's election has succeeded since--in part because the system is designed to thwart such efforts.

Intrastate electoral independence

When electors exercise their independent judgment, they do so because of the deliberative process that occurs within their state and almost never collectively crosses state lines. In 1828, for instance, seven electors voted for William Smith as Andrew Jackson’s vice president instead of John Calhoun—all seven were in Georgia. Thirty electors in 1832 voted for William Wilkins as Andrew Jackson’s vice president instead of Martin Van Buren—all thirty were from Pennsylvania, as was Wilkins. And in 1836, twenty-three electors abstained from voting for vice president instead of supporting Democratic nominee Richard M. Johnson—all twenty-three were from Virginia.

Indeed, as long as electors are casting votes (many years ago, proposals for an "automatic" Electoral College were floated, eliminating the human element), it is good for electors to exercise independent judgment. In 1872, for instance, it was good that most Democratic electors voted for someone other than Democratic presidential nominee Horace Greeley, who died after Election Day. Or for eight electors to vote for someone other than William Howard Taft’s running mate James Sherman, who died a week before Election Day.

But exercising independent judgment as individual is quite different from conspiring collectively toward a common outcome, and particularly different from conspiring across state lines.

Political parties

It's true that we have something quite different than what the Framers anticipated in 1787 (but was quite well-established by 1804 when the Twelfth Amendment was ratified): the two-party political system that still dominates our election system. The rise of political parties created stability in the process—while electors could not conspire across states, their common partisan affiliation and the party’s selection of a nominee brought stability to the process across the country. Voters (or state legislatures selecting electors) knew well in advance that the electors would support a particular candidate--the candidate that party nominated. These were party loyalists.

While it would be essentially impossible to conspire during the meeting of the Electoral College, as a practical matter, partisan loyalties offered contrasting visions for presidential electors, and the Electoral College quickly became a fairly stable and routine selection process between the candidates of two parties. Indeed, such loyalty became so obvious that today almost all states have stopped listing the names of electors on the ballot, listing on the electors.

This description provides two important conclusions. First, the ex ante nature of presidential electors' loyalties makes for fairly easy affiliation with a single presidential candidate. It has been an impossible effort to corral presidential elector support across the states ex post, sometime after Election Day but before the meeting of the electors.

Second, the two-party system did change how elections occurred--we ended the expectation that races would be resolved in Congress. Since 1804, just two presidential and one vice-presidential election have been resolved in Congress--the election of 1824, where four candidates secured electoral votes but no one secured a majority; and the election of 1836, where just enough Virginia electors cast votes for someone other than the presumptive vice president that the election was sent to the Senate (which voted for the presumptive vice president anyway). As originally designed, the thought was that independent judgment would rarely result in a majority, sending the election to the House--a notion that collective deliberation would not occur!

An contingent election in the House

Furthermore, it's worth emphasizing that this Electoral College effort will not send the presidency to Hillary Clinton. It is, at best, designed to turn at least 38 Republican electors (and perhaps some Democratic electors) to vote for someone else (perhaps John Kasich), depriving Mr. Trump of at least 270 electoral votes and sending the election to the House of Representatives. But, as I've noted before, if the Republican-led House and the Republican-controlled state delegations--led by individuals like Paul Ryan--did not stop Mr. Trump at much easier points early in this campaign (such as during the Republican National Convention)--I find it hard to believe it would choose to deny him the presidency at this moment. Again, while it would be within the House's prerogative to select among the top three vote-getters in the implausible event no one secured 270 votes on December 19, it is yet another unlikely result.

Collective action

Finally, it takes only a moment to recognize the massive collective action problem, built into the design of the Electoral College. What assurance to electors have that their counterparts in the other 49 states (and the District of Columbia) will act as promised? Even if many did agree in advance, it is quite another to trust that such decisions are being made elsewhere.

And there is a potential unraveling problem in the digital age--while conspiracies might have been impossible in 1787, they face the unraveling of a decision-making process across time zones. Electors typically meet at noon in state capitals--noon, local time. (A few around 1 pm, and perhaps others scattered around these hours.) Early-voting electors have no guarantees that later-voting electors are voting as promised; and later-voting electors can observe if early-voting electors defected, which increases the likelihood of their own defection.

An effort doomed to fail

This piece, I hope, describes why such an effort is doomed to fail. It might be the case that, as a normative matter, we would prefer electors to conspire across state lines. But the system is designed to thwart such efforts--and quite successfully. We have had 53 presidential elections since the passage of the Twelfth Amendment; the outcomes have never been altered by "faithless" electors, and only once (the vice presidential election of 1836) was the race sent to Congress, which resolved it as would have been expected from popular voting, anyway.

It might be the case, as many have suddenly discovered, that the Framers had wisdom in authorizing the independent discretion of electors. But it is also the case that the Framers decidedly created a system that would be built upon independence during the meeting of electors and thwart conspiracies among electors--perhaps another element of our constitutional design that could inform what it is likely to occur this December 19.

The Vermont Supreme Court oral argument in Cruz and Rubio "natural born citizen" litigation

You may have long forgotten about the "natural born citizen" litigation in the 2016 presidential election, which I chronicled this spring. One can be forgiven, because, as hot as the topic was, Ted Cruz dropped out of the race, most cases disappeared, and little has been thought about the matter (much less about the even more tenuous and rare litigation surrounding Marco Rubio). My forthcoming Fordham Law Review piece chronicles the procedural paths these cases took, urging courts to exercise caution before needlessly plunging into disputes that the political process could readily solve, or areas where the state legislature failed to give them express jurisdiction.

Procedure took center stage in Vermont.

The plaintiff, H. Brooke Paige, was one of the first to file a claim challenging Messrs. Cruz's and Rubio's status as "natural born citizens." Mr. Paige filed pro se and sued both candidates and the state of Vermont. The case was dismissed. Mr. Paige appealed, again pro se. And the Vermont Supreme Court scheduled 30 minutes of oral argument for November 30, 2016. Messrs. Cruz and Rubio waived the opportunity to appear at oral argument. The oral argument has been uploaded.

The Vermont Supreme Court did care about procedural matters and asked Mr. Paige almost exclusively about those procedural points. First, as neither Messrs. Cruz nor Rubio were on the general election ballot, one justice wondered whether the dispute was moot--but Mr. Paige emphasized they were on the primary ballot. (Later analogies to abortion mootness exceptions arose.)

Another justice asked that the Constitution has a requirement as to who can serve as president; but does that extend the same as to who can run for president? Mr. Paige identified them as the same standard.

As to standing, Mr. Paige claimed he sought ballot access in Vermont.

The government opened with a mootness claim, which the Court challenged, but the government answered that while mootness could be an issue in election cases, it was not a problem in this case, where the plaintiff was responsible for many of the delays.

The government then noted the speculative future of the claim and the breadth of citizenship claims that might need to be raised. When the court later noted that its previous mootness case included the fact that Barack Obama was ineligible for another election, the government tried to raise the greater speculative nature of the political process. But the court pressed back that "capable of repetition yet evading review" inherently speculate about the future.

The court also mused that this exception often refers to the plaintiff's injury, as in the case with abortion cases; but, the court noted, if he has standing, what are the odds the plaintiff would face an election against someone born to foreign-born parents? That, the court said, might be a different case, as it seemed quite likely Mr. Paige would run again and face someone in that citizenship posture. But, another justice pressed back that it seemed like an advisory opinion, as it would be conditioned on "if" Mr. Rubio or someone else ran for office.

The court then asked about standing--a statute says that an election may be contested by any voter in the process. The government described the standing as something ministerial, such as the conduct of the election itself; or to matters like voter intimidation. But those are about the validity of the election, the government said, and the statute does not extend to challenges about qualifications.

The government moved back to the questions of Mr. Paige as a candidate challenging Messrs. Cruz and Rubio and argued that he was not truly a competitor in the election, such that he did not have standing.

The court started to worry about competitor standing--suppose Mr. Obama ran for governor in Vermont as a resident of Illinois? The government conceded that his general election opponent might have standing in that case.

All in all, the court muddled through a series of standing, mootness, and statutory issues, with virtually no time spent on the merits. It's unlikely we'll see any surprises... but only time will tell.