OVERNOR BUSH HAS declared himself the winner of the electoral vote even before the Electoral College has convened and cast its ballots. How can he be so sure all 271 of his electors will fulfill their pledges to vote for him? Isn't it something like a defendant listening to the instructions to the jury, applying the instructions to the facts as he knows them, and declaring himself not guilty? He says he has heard the fat lady sing, but maybe it was an ambassador aborning in Tallahassee.
There have been faithless electors, and there may be once again this year. A surprising number of leading constitutional law scholars (if names are relevant: Akhil Amar, Mark Tushnet, Bruce Ackerman) have argued that the electors are free to vote their conscience. This year the electors arguably have good reason to be feel unrestrained by the dictates of convention. Vice President Gore won the popular vote by a handsome margin of 350,000 votes. This is a real difference, not one likely to be thrown in doubt by a recount here or a cache of uncounted ballots there. Gore is the democratic victor. Is there no elector who might be moved by the legitimacy of the democratic vote?
The best argument for recognizing this residual discretion in the electors is that they are human beings. One could have a system in which the electoral votes of the certified victor automatically went to the winner, but that is not our system. Why do we have human electors if we do not wish them to use their judgment about what is good for the country? They are not simply honored yea-sayers.
Those arguing for electoral freedom sometimes claim that because the electors can get away with betraying their pledges, it follows that they may permissibly vote their consciences. But this is an obvious fallacy. ''Can with impunity'' does not imply ''may.'' Juries can disregard judicial instructions and avoid sanctions for their act of disobedience. It does not follow that they have a right to make the law up themselves.
How, then, should we conceive of the state-appointed electors? The advocates of electoral freedom point to the original purpose of the Electoral College: Namely to introduce a layer of good judgment between the vote of the mob and the official choice of the president. The closest analogy in our structure of government is the trial jury, which interposes the judgment of common people as a restraint on the official application of the law. In the early days of our system, both electors and juries enjoyed more freedom of judgment than they have now.
The method of election underwent a profound change in 1803 with the intruduction of the 12th Amendment. Under the original system of voting, the person who came in second was vice president. That is why John Adams had to endure cohabitation with Thomas Jefferson and why Jefferson had to put up with Aaron Burr. The 1803 amendment recognized, for the first time, that candidates for the presidency and vice presidency run as members of a ticket, as colleagues standing for a single political party.
Along with the recognition of ticket voting, the electors lost their individuality and became agents of particular parties pledged to elect candidates who won in the popular election. If the electors were originally supposed to vote as the Republic's ''wise men,'' this was not their task after ratification of the 12th Amendment. The electors have become an anomaly, a throwback to the Constitution of 1789, when we did not trust the electorate and did not realize that voters would eventually vote for party tickets.
When Governor Bush declares himself the winner, he is subscribing to a view of the Constitution that a text-bound strict constructionist would not share. He believes in the unwritten rules that have become accepted as binding constitutional practice. This, of course, is the way a conservative should think: Tradition itself becomes a source of constitutional authority. One of our traditionally accepted, unwritten rules is that the electors must vote for the candidate to whom they are pledged. If they do not, the Supreme Court could, in my opinion, declare their votes null and void as a violation of the de facto constitutional principles that govern the country.
If he wants to think of himself as president-elect, Governor Bush should remember his view of the Constitution. He believes in a conservative Constitution, sensitive to tradition and capable of absorbing new principles that rise up from the practice and beliefs of the people. This will be critical if and when he should have the opportunity to appoint justices to the Supreme Court. As he accepted the customary rule that electors must vote their pledges, he should appoint judges who share this philosophy of sensitivity to the unwritten rules - like the right to privacy - that have become entrenched in our understanding of our Constitution.
George P. Fletcher is Cardozo Professor Jurisprudence at the Columbia University School of Law.
