Who elects the president of the United States?In a democracy, that shouldn't be a trick question. Thanks to the Electoral College, it seems like one. The
American people cast their ballots on a Tuesday in early November, but on a national level that vote is legally meaningless. The real
election happens about six weeks later, when 538 presidential electors -- most of them average citizens chosen by local party leaders -- meet in their respective state capitals and cast their ballots.Nearly always, the electors vote for the candidate who won the most popular votes in their state. But do they have to? That's the question that the
Supreme Court has agreed to answer in two related cases it will hear this spring. The cases -- one from
Colorado and one from
Washington -- raise an alarming prospect: Can presidential electors vote for whomever they please, disregarding what the voters of their state said?More than 160 "faithless electors" have chosen to go this route since the nation's founding, a tiny fraction of all electoral votes in history. But the issue has become freshly relevant because of a concerted effort to persuade dozens of
Republican electors in 2016 to switch their votes to prevent
Donald Trump from taking the White House. In the end, 10 electors voted or tried to vote for someone other than their state's popular-vote winner -- the most in a single election in more than a century. (In 1872, 63 electors went against their pledge to vote for Horace Greeley, the Liberal Republican candidate, but that was because Greeley died shortly after Election Day.)Even though faithless electors have never come close to changing the outcome of an election, more than two dozen states have passed laws requiring their electors to vote for the state's popular-vote winner. Some punish those who don't, while others replace faithless electors with ones who will do the job they pledged to do.Last May, Washington state's Supreme Court ruled that the state had the power to impose a $1,000 fine on its four faithless electors, on the ground that the Constitution gives the states total authority to decide how to appoint their electors.Three months later, a federal appeals court in Denver went the opposite way, ruling that the founders clearly intended for electors to act independently and vote according to their consciences, not to the dictates of any political party. Once a state appoints an elector, the court said, its power over that elector ends. They cannot punish someone, or replace him or her, for voting a certain way.The Constitution doesn't include any explicit guidance on the matter. So who's right? In a way, they both are.The framers of the Constitution, and the states that ratified it, clearly expected electors to vote as they pleased. In Federalist No. 68, Alexander Hamilton wrote that electors would be men "selected by their fellow-citizens from the general mass" and "most likely to possess the information and discernment requisite to such complicated investigations."And yet, the Electoral College has almost never worked that way in practice. Less than a decade after the Constitution was drafted, the framers' idea of an independent elector was effectively kaput. As soon as national political parties took shape,
elections became a partisan competition, and it was only logical that electors would start to take sides. In the election of 1796, electors were already pledging themselves either to John Adams, the sitting vice president and Federalist, or to Thomas Jefferson, the former secretary of state and Democratic-Republican. When one elector pledged to Adams changed his mind and voted for Jefferson, Federalists were outraged. One wrote, "Do I choose Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be President? No, I choose him to act, not to think."That's been the operating assumption ever since, and it is almost never questioned. Even the term "faithless" is revealing: What faith is an elector who votes his or her conscience breaking? Didn't the founders intend electors to be faithful above all to the country?Yes -- and yet they are not now and essentially never have been. For this reason, however the Supreme Court resolves the issue, which it will do by early summer, little will change in practice. Political parties and their candidates, who currently choose their own slate of electors in each state, are already careful about selecting people for their partisan loyalty. That selection process will only become stricter if the court rules that states may not interfere in any way with electors' votes.And faithless electors are unlikely to affect the outcome even if the Electoral College tally is very close, as it was in 2000, when as few as three Republican electors could have broken their pledges and handed the presidency to the
Democratic nominee, Al Gore, who won the most votes nationwide. None did.That makes sense. Americans would rightly revolt if a handful of people they'd never heard of ignored their votes and decided the election for themselves. It's almost as if we believe that we, the people, should be voting directly for the president -- the only official whose job it is to represent all of us equally, wherever we live. Which raises the question of why we still have an Electoral College at all.This article originally appeared in The
New York Times.(C) 2020 The New York Times Company