Bennett on Electoral College Reform

Check out Electoral College Reform Ain't Easy By Robert Bennett on the Northwestern University Law Review's new blog, Colloquy. Here is a taste:

One possible stumbling block is that it is sometimes urged that elector faithlessness is constitutionally protected.  The constitutional argument is grounded in the original conception of electors as rising above politics to exercise real discretion as they debated and decided on who in the country could best fulfill the calling to be President of the United States.  That vision of the role of electors bears no resemblance to the way they function today.  If we took the argument for constitutional protection seriously, we would also have to take seriously other aspects of the original conception of the presidential selection process.  For instance, neither political party designation nor the names of presidential and vice presidential “candidates” could appear on ballots, because that is a way of signaling pre-commitment of electors, rather than a process of debate and discussion that was the reason for creating the electoral college.  Protecting elector faithlessness, in other words, would work havoc with the modern way in which we choose our chief executive.  Thus, it is hardly surprising that the Supreme Court tilted against constitutional protection for elector faithlessness in the only decision that touched on the question.

Bennett's argument simply does not follow.  From the fact that the Constitution contemplates the elector's can vote free of instruction, it simply does not follow that ballot's cannot list candidate names or party affiliations.  There is a tension at the level of rationale, but such tensions are ubiquitious in the law.