During a recent MSNBC interview, constitutional scholar and Harvard Law School Professor Emeritus Laurence Tribe launched a startling attack on the Supreme Court’s draft decision of Dobbs v. Jackson Women’s Health — by undermining our nation’s election framework.
Mr. Tribe argued, “the question of whether a court, many of whose members were put there by presidents who lost the majority of the American people, can impose this regressive, almost Neanderthal minority view on all of us is a really serious question.”
Simply put, Mr. Tribe is suggesting that the Supreme Court justice appointments of a president who did not win the popular vote (despite winning the electoral college) may not be legitimate. And if those justices are not legitimate, neither are any of their opinions. Therefore, the Dobbs draft decision, which would purportedly overturn Roe v. Wade — once finalized — should not be recognized as law.
Mr. Tribe clearly needs to attend constitutional law lectures again to understand the American form of government.
In this country, we have an election process that was originally laid out in the Constitution at Article II, Section 1, Clause 2, requiring each state to appoint electors equal to the number of senators and representatives it is entitled to in Congress. Each of these electors is eligible to cast a single vote for the president of the United States. American elections have been conducted in this manner since 1787, despite myriad challenges to the process raised by political operatives on both sides of the aisle.
What is most frightening, however, is that Mr. Tribe is far from the first to attack the constitutional framework and legitimacy of the Electoral College. A movement to eradicate the Electoral College has existed in the U.S. for decades in different forms.
For example, some scholars believe that such a compact could have legal force with congressional consent under the Compact Clause of Article I, Section X of the Constitution. Others have raised the possibility that states have the plenary power to appoint electors under the Elections Clause of Article II, Section 1. Despite these radical theories, most scholars rightly believe our nation’s election framework cannot be altered without a constitutional amendment.
The most recent organization pushing for electoral reform without a constitutional amendment is the National Popular Vote Interstate Compact, which hopes to create a coalition of states with enough total electoral votes (270) to elect the president. Each state signatory would agree to give its electoral votes to the winner of the national popular vote rather than the winner of its own state’s electoral vote. This creates a multitude of problems.
First, it would seem unconstitutional for a state to disenfranchise its own voters to give power to a majority of voters from outside the state. Second, it would disregard the different recount rules of each state, which violates the 14th Amendment Equal Protection Clause per Bush vs. Gore. Third, candidates could run to simply dilute the popular vote total needed. Fourth, such a process could undermine elector voting rights since the 12th Amendment does not prohibit “faithless electors,” and an interstate compact could usurp elector voting decision-making power (while some states have statutes that penalize electors from voting inconsistently with their slate, others do not).
This dangerous methodology would effectively modify the way states implement Article II, Section 1, Clause 2, which mandates that each state legislature defines its own method to appoint electors to vote in the Electoral College.
Americans should also be cognizant of the NPVIC’s apparent political motivation — and the motivation of the electoral college reform movement. The states that support the NPVIC are Democratic-leaning, and the states that are not signatories are largely Republican-leaning states. In the past 20 years, two Democratic presidential candidates lost to their Republican opponents despite winning the popular vote.
When viewing Mr. Tribe’s comments in context, they add up to an opaque attack on the Electoral College and the legitimacy of the presidents who appointed the justices he references. Such an implication undermines our constitutionally prescribed republican form of government.
Constitutional scholars must be guardians of the Constitution and the Supreme Court, protecting them from politicization and defending against political diatribes about what the law should be — rather than what the law is. The fact that anyone with Mr. Tribe’s standing would make such a suggestion is cause for alarm that should resonate with legal scholars everywhere, as it is evidence that even the constitutional law community is struggling to maintain its intellectual consistency and integrity.
In this country, the U.S. Constitution, and therefore the Electoral College is law. All justices have equal authority under the law — and each one of their opinions counts.
• Shawn M. Flynn is a Georgetown Law School graduate who served as a special assistant U.S. attorney for the Eastern District of Virginia, 2019-2020. He now practices constitutional law for the Binnall Law Group.
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