Goldberg: Texas AG’s lawsuit is a shameful display of hypocrisy

File photo by Al Drago of The New York Times / Ken Paxton, the Texas attorney general, holds a news conference outside the Supreme Court building in Washington on Sept. 9, 2019. File photo by Al Drago of The New York Times / Ken Paxton, the Texas attorney general, holds a news conference outside the Supreme Court building in Washington on Sept. 9, 2019.

By Jonah Goldberg December 11, 2020 4 min read

I’m angry.

I have been defending the Electoral College and the larger Madisonian vision behind it – often called “federalism” – for decades. This put me in the awkward position of defending the legitimacy of Donald Trump’s presidency – he lost the popular vote in 2016 but won in the Electoral College – while simultaneously arguing he was unfit for the job to which he was legitimately elected.

Before I get to why I’m angry, let me explain something. Under the Constitution, the citizenry doesn’t elect the president; the states do. They do this by appointing electors who vote in the Electoral College. How states allocate their electoral votes is left up to their legislatures.

Since the Civil War, all states have decided to allot their electors to whichever candidate wins a majority of the vote within that state. But the legislatures don’t have to do it this way. Indeed, before the Civil War, South Carolina didn’t have a statewide vote for president. The legislature decided which candidate the state’s electors should vote for.