[Editor's Note: The following piece is an informal dialogue between Professors Solum and Bennett which grew out of Bennett's prior piece on the Colloquy, Electoral College Reform Ain't Easy (click here to read the original piece). Other readers wishing to participate in this dialogue are invited to submit a piece to the Colloquy Editor, or to leave a comment below.]
I recently posted about Bennett's very interesting piece on Legal Theory Blog: Bennett on Electoral College Reform. My post quoted a long passage, but in this comment I want to focus on the following:
If we took the argument for constitutional protection [of an elector's right to vote contrary to instructions] 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.
My post then commented:
Bennett's argument simply does not follow. From the fact that the Constitution contemplates that electors can vote free of instruction, it simply does not follow that ballots cannot list candidate names or party affiliations. There is a tension at the level of rationale, but such tensions are ubiquitous in the law.
Professor Bennett's reply has been posted on Legal Theory Blog (Bennett Replies on Electoral College Reform), and our exchange is cross-posted here on the Colloquy.