The Constitution of these United States is not a philosophical rumination — it is very specific…

The Constitution of these United States is not a philosophical rumination — it is very specific prescriptives for how to elect a bicameral legislature, choose a president, enact a bill into law and otherwise carry out the particular operations assigned by the sovereign people to the federal government which they establish to regulate the states. With that understanding we can examine the plain words of the Twelfth Amendment (superseding Article II, Section 1, Clause 3 of the Constitution, after the unanticipated snafus of 1796 and 1800): The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.

There is no mention here of Electors ‘pledged’ to candidates; and there is the specific expectation that the Electors of a state will vote for and transmit to the Congress the names of multiple candidates and the number of votes each received. These are specifically Constitutional provisions which presumptively outweigh any constraint imposed by a State to the contrary. The specific reservation to the respective States of the method each might employ in choosing Electors, enunciated in Article II, Section 1, Clause 2, gives way here in the Twelfth Amendment to a carefully described procedure for those Electors to follow. A reasonable Court examining these texts might justifiably conclude that the ‘pledging’ of Electors is, as a Constitutional matter, unenforceable; but also might conclude that ‘winner take all’ constraints on a State’s electoral votes are likewise Constitutionally unenforceable.

Furthermore, while both the original text of Article II, Section 1 and the superseding text of the Twelfth Amendment specifically require that “The Electors shall meet in their respective states” rather than all together in general convention, there is no prohibition on those state conventions communicating with one another — nor with the presidential campaigns of the various candidates. The original Article II, Section 1 was drafted at a time when there were no organized political parties in the United States, and in fact there was strong distaste for party politics after the colonists’ experience of the British Parliament in the 1760’s and 70’s. At the time of the Twelfth Amendment parties had been organized, but the practice of nominating candidates in general convention was still 20 years in the future. Yet there in the Twelfth Amendment is the empowerment of individual Electors to politic for the election of a President just as delegates to a party convention politic for the selection of a candidate.

If the Supreme Court were to take the path of least resistance (which is also the path of greatest Constitutional fidelity) on Prof Lessig’s case, the Court would note both the Constitutional delegation to the States of their individual method of choosing Electors, but would also note the freedom of those Electors to act as they see fit — specifically to spread their votes over a variety of candidates. This freedom means that the campaigns of the presidential candidates might have as much politicking to do after the general election as before — but isn’t that really the point of a two-step Presidential election — which is after all what the Electoral College is. Civilized countries like France conduct two-step presidential elections precisely to get a more reasonable, less extreme, outcome. Understood in this way the Electoral College might actually fulfill its original function of tempering the effect on the selection of a President which might be exercised by a radical and partisan mob and the demagogue who leads them.