as wise men who would exercise independent judgment. The best argument against the plaintiffs is everything else under the sun. From the early days of the republic, states have forced electors to side with the winner of the statewide vote. Nothing in the Constitution clearly prohibits this option; to the contrary, it grants states broad power over their electors.
“Those who disagree with your argument,” Justice Samuel Alito told Lessig, “say that it would lead to chaos”—that in a close election, “the rational response of the losing political party” would be “to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be.” Lessig told Alito he did not “deny it’s a possibility,” but it’s one that hasn’t happened yet—and even if it does, that’s the Constitution’s fault.
As that exchange indicates, Lessig’s theory rests on a sleight of hand. He suggests that state control over electors presents authoritarian-style election rigging. But in reality, the states are merely directing electors tothe result of elections. Lessig’s position isn’t democracy-enhancing—it’s democracy-diminishing.
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