The Supreme Court unanimously ruled on July 6 that states can punish presidential electors who do not cast their ballots in the Electoral College for the candidate who received the most votes in their state. Commentators on both sides of the political aisle praised the decision as stabilizing our electoral system ahead of the 2020 presidential contest. Yet, some constitutionalists have been left scratching their heads.
Under our constitutional system, when Americans “vote for president”, they are actually voting in statewide elections for presidential electors. The 538 people who make up the Electoral College cast the actual votes for president in December, four weeks after election day.
A voter who selects the Republican candidate for president, then, is actually voting for Republican electors from their state who are pledged to support the party’s candidate. Likewise, a voter who selects the Democratic candidate for president is voting for Democratic electors pledged to their party’s candidate.
Over the course of our nation’s history, a small number of “faithless electors” have broken ranks and voted for someone other than the person they were pledged to support. But these votes have never altered the outcome of a presidential election.
Nevertheless, thirty-three jurisdictions have laws removing, punishing, or cancelling out the vote of electors who do not vote as they promise. In 2016, two of these jurisdictions, Colorado and Washington state, took action against a handful of Hillary Clinton electors who voted for other individuals, such as Colin Powell or John Kasich. Colorado immediately removed its rogue elector; Washington state fined its “faithless electors” $1,000 each.
Lower courts came to opposite conclusions about whether our Constitution permits states to take action against rogue electors. The Supreme Court decision, Chiafalo v. Washington, resolved the dispute in favor of the states.
Writing for the Court, Justice Elena Kagan said Electoral College delegates have “no ground for reversing” the statewide popular vote. Voting against the will of the people from their state, Kagan concluded violates “the trust of the Nation that here, We the People rule.”
In a separate — and more compelling — concurring opinion, Justice Clarence Thomas said he would resolve this case under the Tenth Amendment. Because the Constitution does not expressly delegate the power to control electors to the federal government or prohibit the states from binding them, Thomas reasoned, states retain the power to do so.
Electoral College expert Tara Ross believes that both Kagan and Thomas got it wrong. Ross says the Framers of our Constitution clearly intended electors to exercise independent judgment in voting for president. Ross cites James Madison, for the proposition that, although electors are “generally the mere mouths of their constituents,”
[t]hey may be intentionally left sometimes to their own judgment … they will be able, when ascertaining, which may not be till a late hour, that the first choice of their constituents is utterly hopeless, to substitute in the electoral vote the name known to be their second choice.
Professor Sai Prakash of the University of Virginia School of Law agrees that the Framers intended electors to be independent. In May, Prakash penned an op-ed for the Wall Street Journal arguing that the Framers believed “well-informed elites could best judge who ought to serve as the nation’s chief executive.” Prakash’s piece quotes Alexander Hamilton in Federalist No. 68:
[The] election [of the president] should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation. . . . A small number of persons . . . will be most likely to possess the information and discernment requisite to such complicated investigations.
Prakash admits that, in practice, there is “little deliberation in the electoral conclaves” and that “[t]he vast majority of electors faithfully track voter preferences in their states.” But he says, this custom is not required, and “[o]nce selected, presidential electors have the constitutional right to vote as they please.”
Ross and Prakash are not alone. Professor John O. McGinnis of Northwestern Law School believes the Court’s seemingly results-oriented decision has the potential to do “grave damage” to originalism. Professor Mike Rappaport of the University of San Diego calls the Court’s decision an originalist “disaster.”
Rappaport credits Kagan’s claim that the interpretations of the Framers are not dispositive but argues that the views of the Framers, nevertheless, provide important evidence of the contemporaneous public meaning of the Constitution’s language.
In this case, the Constitution gives states the power to “appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” The language refers to the manner of appointment — not what happens after appointment. And, as Rappaport notes, “[a]ppointing an elector would not normally be understood to give authority to control how the elector votes.” He elaborates:
Justice Kagan then argues that the Framers could have written into the Constitution that the states cannot control the electors’ votes, but did not do so. True, but so what? The question is what the words say, not whether the issue could have been made even clearer in a longer document.
So why did originalist justices, with the exception of Justice Thomas, sign on to Kagan’s opinion?
Perhaps, as Justice Brett M. Kavanaugh alluded to at oral argument, it was to avoid the potential “chaos” that might result from a ruling that expressly allowed electors to go rogue. Fears of massive lobbying efforts aimed at electors and even potential bribes may have scared the justices away from originalism in this case.
Of course, as all of the justices understand, a contrary ruling would not just potentially lead to chaos. It would have added fuel to the fire currently being flamed by opponents of the Electoral College, who seek to eliminate our tried and true mechanism for electing a president with disingenuous claims that it is “undemocratic.” Perhaps, then, in this instance, the Court simply chose to ignore the original meaning of the Constitution so as to preserve it for the long run.
To learn more about the Chiafalo decision, watch this discussion with Electoral College expert Tara Ross HERE.