Constitutional Conservatism and the Electoral College

At The New York Times, J. Michael Luttig, formerly a judge on the U.S. Court of Appeals for the Fourth Circuit, makes a compelling conservative case for clarifying the Electoral Count Act. Self-described constitutional conservatives like Senators Ted Cruz of Texas and Josh Hawley of Missouri exploited the Act’s ambiguity to attempt to overturn the 2020 presidential election last January 6, adding oxygen to the fire that Donald Trump had lit and fanned with weeks of falsehoods.

Luttig’s conservative case for the Electoral College is firmly rooted in federalism and equally firmly opposed to centralization. He writes: “It should be anathema to [Republicans] that Congress has the power to overturn the will of the American people in an election that, by constitutional prescription, is administered by the states, not Washington.”

There is another reason empowering Congress to elect the president should be anathema: the separation of powers. A president chosen by a Congress overruling the constitutionally expressed will of the people would almost certainly be subservient to legislators. For that reason, delegates at the Constitutional Convention rejected the Virginia Plan’s proposal that Congress elect the president outright. They included James Madison, the Plan’s putative author. He warned on July 17 that a president elected by the legislature could not be independent of it:

In like manner a dependence of the Executive on the Legislature, would render it the Executor as well as the maker of laws; & then according to the observation of Montesquieu, tyrannical laws may be made that they may be executed in a tyrannical manner.

Madison in the Constitutional Convention, July 17

The Electoral Count Act was written in response to the notoriously corrupt presidential election of 1876. Reform that makes objections to electoral votes harder while clarifying that the vice president’s role is purely ceremonial could command bipartisan support while preventing another corruption—perhaps catastrophic—in 2024.

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