Tuesday, November 29, 2016
Kerr on Why Electors Shouldn't Choose Clinton
Orin Kerr replies to Lawrence Lessig in this Volokh Conspiracy post. (H/t Cliff Scott-Rudnick.) In short:
[I]f [electors should exercise independent judgment], it's hard to see how electors would be exercising their independent judgment by deferring to the popular vote. That's especially so because they would be deferring to the popular vote in other states that didn't even vote for them as electors.
. . . It's hard to have electors follow an ancient principle that gives them independent judgment and yet simultaneously follow a newer principle [one-person, one-vote] that takes their judgment away. The two ideas don't readily mix.
More broadly, I would think that any proposal for how electors should vote should be settled before an election rather than offered to resolve an election that already occurred.
How about if they voted for not-Trump for a different reason? Such as, failure to release his taxes, lying about (this and that) banning Moslems, restoring waterboarding, etc. Then he would be using their own judgment, as the Founders intended
Posted by: eli bortman | Nov 30, 2016 7:04:54 AM