Noble: What does Frodo have to do with It? | VailDaily.com
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Noble: What does Frodo have to do with It?

We may have Frodo Baggins to thank for heightened public awareness of two recent cases before the United States Supreme Court.

Before we get to Frodo, note that due to COVID-19 social distancing restrictions the United States Supreme Court took the unprecedented step of hearing oral arguments via teleconference for the final cases of the recent term. Even more unprecedented — they allowed the public to listen in.

For the final two cases of the term, the issue at hand is momentous — the role of presidential electors. For C-SPAN nerds it was a ringside seat to hear tremendous legal minds probe nuanced facets of this question. Listeners were transported to another era when individuals questioned one another politely and respectfully. No one talked over another. There was no name-calling. And it turns out the Justice Breyer sounds remarkably similar to Sheldon from “The Big Bang Theory.”

The two cases involving presidential electors were Chiafalo v. Washington and the State of Colorado v. Baca. Both involve “faithless” electors. Faithless electors fail to vote for the candidate to whom they were pledged. In the former case, three Washington state electors voted for Colin Powell in 2016 instead of Hillary Clinton. In the latter case, also in 2016, one Colorado elector voted for John Kasich instead of Clinton.

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To be clear, these votes were not motivated by antipathy towards Clinton — these electors were trying to prevent Trump from taking office. In fact, the 2016 Electoral College featured more faithless electors than any presidential election in U.S. history.

Is ours a country where “every vote counts” is more than a mere slogan? I made the case that every vote really does count in a column earlier this year. In it, I wrote about recent elections that ended in ties. In the examples I provided the victor was chosen by chance, not voters. Just one additional vote would have changed the manner in which the election was decided.

I believe my vote counts. I am going to guess that most people who vote do so believing that their vote also counts and moreover, is binding rather than advisory to the unelected members of the Electoral College. Isn’t the Electoral College a quaint artifact of the 18th Century? Maybe not.

Which brings us to Frodo. Justice Clarence Thomas raised the question to Jason Harrow, attorney for elector Michael Baca, of whether or not an elector, unencumbered by consequence could vote for whomever he pleased, including J.R.R. Tolkien’s hobbit. Harrow insisted that electors could not vote for fictional characters, but could vote for the candidate of their choice, according to the United States Constitution.

Even conservative Justice Samuel Alito seemed concerned about the havoc such an acknowledgment would wreak: “We have to interpret the Constitution to mean what it means, regardless of the consequences, but … we are told by experts in elections that the consequences would be potentially chaotic.” It is as if Gandalf anticipated Alito’s concern, “Even the very wise cannot see all ends.”

Admittedly, as a Joe Shmoe, mine is not the argument of a constitutional scholar. That said, what seems obvious to me is the fact that the road to the White House is exhaustive and expensive — more than $2 billion was spent on the presidential campaign in 2016, and in addition to the stunning cost of a U.S. presidential election, the race is one of the longest in the world.

But if all a candidate must do to win the election is convince a handful of electors in each state to vote for them, why spend the vast sums of money and invest nearly two years campaigning? Because, candidates spend the time and money trying to win over voters, not electors. In practice, the Electoral College is a rubber stamp. Electors are not free agents with discretionary votes.

Furthermore, according to the Pew Research Center, most Americans, 58 percent, would eliminate the Electoral College in favor of the national popular vote deciding the winner of the presidency.

If we are concerned about democracy, and we should be, what seems more democratic, the votes of more than 138 million Americans, or the votes of 538 appointed electors?

The Supreme Court’s ruling on this case is expected in July.


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