Lawrence Lessig, a well-known professor of law at Harvard University and a political activist, penned an opinion piece in The Washington Post encouraging electors to cast their votes for Hillary Clinton despite Donald Trump winning more votes in the Electoral College. His theory is that, while it has never been tested like this, the Electoral College is a “safety valve” that is intended “to confirm — or not — the people’s choice. ” According to the latest tally, Hillary Clinton is leading the popular vote by more than 2 million.
Instead, if the electoral college is to control who becomes our president, we should take it seriously by understanding its purpose precisely. It is not meant to deny a reasonable judgment by the people. It is meant to be a circuit breaker — just in case the people go crazy.
In this election, the people did not go crazy. The winner, by far, of the popular vote is the most qualified candidate for president in more than a generation. Like her or not, no elector could have a good-faith reason to vote against her because of her qualifications. Choosing her is thus plainly within the bounds of a reasonable judgment by the people.
The framers left the electors free to choose. They should exercise that choice by leaving the election as the people decided it: in Clinton’s favor.
Unlike many who believe the Electoral College should be eliminated, Lessig contends that institution may serve an important function especially in this election. However, it is worth noting that there are laws in place in dozens of states that penalize electors if they vote against the popular vote. On top of that, you can bet Trump would file legal action if electors voted their “conscience.”
More than 4.6 million people have signed a Change.org petition encouraging electors to pick Clinton when they convene on December 19th. Others, including former White House lawyer Richard Painter, believe that because Trump may be in violation of the Emoluments Clause of the Constitution, the Electoral College must decide to vote against him.
Other legal experts, including LawNewz.com‘s founder, Dan Abrams, say that it is time to do away with the Electoral College all together.
“To be clear, I am not suggesting that Trump didn’t win fair and and square. He did, and Donald Trump, is, and should be, our President-elect. Period. But now it is also high time to change our anachronistic electoral system for selecting a President,” Abrams wrote in a recent opinion piece.