On Thursday I wrote about a Harvard Law Review note calling for, among other things, elimination of the unrepresentative, undemocratic Electoral College. On Friday, Attorney General Jason Ravnsborg proudly announced that a case in which he’s sticking up for states’ rights to meddle in the Electoral College is headed for the Supreme Court.
The Supreme Court has consolidated two cases, Colorado Department of State v. Baca and Chiafalo v. Washington, in which Clinton electors chose to vote for someone else and were punished under their states’ “faithless elector” laws, which require electors to vote as dictated by their states’ popular votes. The Washington Supreme Court ruled that states may exert such control over their electors; the U.S. Tenth District Court found that states cannot constitutionally remove a faithless elector and cancel his vote. The Supreme Court announced Friday that it will hear the cases, meaning we get to have a big, precedent-setting argument about the Electoral College just months before the Electoral College picks the next President.
Team Ravnsborg filed its amicus brief in Colorado v. Baca on November 20, 2019. His brief notes that South Dakota and four other amicus signers are not among the 32 states that require electors to vote according to the popular election outcome: “Throughout South Dakota’s history it simply has been understood that electors will honor their party’s and the electorate’s will and cast their votes for the presidential ticket that won the statewide popular vote.”
Our Attorney General greeted the Supreme Court’s certiorariïzing this case with this eager bit of tone-deafery:
“It is important to know the rules when determining any contest and this is especially important when determining the presidency of the United States…. If this decision is not overturned it is possible that 538 electors could determine the leader of the free world while ignoring the votes of the rest of the country [Attorney General Jason Ravnsborg, press release, 2020.01.17].
538 people determining the leader of the free world contrary to the votes of the rest of the country—somehow I don’t think Jason Ravnsborg fully thought through his words there, because the last two members of his party who have become President won the White House by exactly that route. George W. Bush and Donald J. Trump—the latter of whose “winning” Ravnsborg continues to slobberingly celebrate online—lost the vote of the rest of the country, but a majority of 538 electors made those losers winners anyway.
Article 2, Section 1, Clause 2 of the Constitution says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….” That passage alone appears to grant the states’ argument: the Constitution gives legislatures authority over the selection of electors, and that authority would appear to give states wide berth in the requirements they may impose on electors. Ravnsborg’s brief reaches beyond Constitutional text to happenstance history to support his position, but strict reading of the Constitution offers no reason that a state couldn’t adopt the Hamiltonian model of an independent Electoral College to which the bolting electors from Washington and Colorado appeal. If Ravnsborg keeps his arguments faithful to Article 2, he’ll have to admit that states have the authority to leave the Presidential candidates and their electors off the ballot completely and simply let their Legislatures choose electors directly. A legislature could grant the power to appoint electors to the governor, or to an independent commission, or to a good round of Chicken Bingo (which a Rip Van Winkle might conclude is how the White House came to be occupied by the current poopyhead).
It’s not a reach to read Ravnsborg’s brief not as a defense of the Constitution but as a plea for judicial leave for the states to circumvent a redundant and obsolete vestige of slave-state politics. Ravnsborg parenthetically acknowledges that the Electoral College was interposed “between the people and their President… (largely to induce southern states into the union)….” His entire argument aims at sitting the Electoral College in a historical corner and ignoring that it serves any independent function. I support doing away with the Electoral College and choosing the President by direct majority popular vote, but I would love for a strict reader of the Constitution to ask Ravnsborg from the bench, “If you don’t like a provision of the Constitution, are we to allow you to pass state laws to circumvent it? Or should we require that, until you states muster the courage and the votes to amend the Constitution, you live with the requirements of the Constitution as written?”
Given Ravnsborg’s persistent misreading of the Constitution in South Dakota cases in 2019, not to mention his blatant and unethical attempt to mislead a federal court judge, the parties arguing these cases and the Justices deciding it may be well advised to ignore Ravnsborg’s natterings and focus on real legal scholars. But as we listen, it likely won’t just be bumblers like Ravnsborg who get tied up in the undemocratic knots of the Electoral College.
Today’s WAPo: https://www.washingtonpost.com/opinions/2020/01/16/are-cows-better-represented-senate-than-people/?arc404=true
Jason Ravnsborg has never been the smartest person in any room he has ever walked into. He is a dunce of a “lawyer”, an embarrassment to our state, and a wannabe combat veteran. Bronze Stars are participation trophies that commissioned officers give each other for drinking Green Beans coffee for 6-12 months. I feel for the poor souls under his command.
Fun read, Buckobear.
“it simply has been understood”
I am not a lawyer, nor have I ever played one on tv, but, still, yet, anyway, the above quote sounds rather pathetic for a document provided to SCOTUS.
BCB, amirite?
Beyond that, we know Ravsbutt is a double digit IQ idiot. I cringe for SD to think of him in front of the razor sharp brain of the Notorious RBG.
Debbo, in my view you are probably right. A “simple understanding” is generally insufficient to invoke standing to seek relief in federal court. Since Ravnsburg has only filed Amicus brief, however, perhaps the lack of standing is not legally fatal. But as you say, it seems a rather pathetic position from which to implore the Court to take action.
This article came across my Twitter feed earlier today. It is not about the Electoral College, but the sub-headline seems relevant: “[t]he premise of Trumpist populism is that the political preferences of a shrinking minority of citizens matter more than democracy.”
The electoral college has circumvented democracy in 40% of the presidential elections of this century. (I think it will again in November.) Ravnsburg’s brief seems to both reflect and further that premise.
“Simple understanding” could turn out to be wrong. The states could make a gentleman’s agreement to circumvent the Constitution, but a judge would be well within the bounds of her authority to say, “Your understanding does not match what the Constitution actually says.”
Kal Lis points to the tension in Ravnsborg’s brief: Ravnsborg pretends that his concern is protection of the popular will against maverick electors, but he’s fighting to defend an obsolete system that protects a poorly disguised minority, in this case, the dwindling minority living in rural America who are terrified of the end of white privilege.
Federal judge from Wisconsin has finally done the needful, kicked Roberts, Thomas and the right wing thugs on the Spotus in their genet tails..
https://slate.com/news-and-politics/2020/03/federal-judge-condemns-roberts-courts-assault-on-democracy.html
They got both barrels of buckshot at point blank range where buckshot is most effective.
(relevant to Electoral College?)