Supreme Court Upholds ‘Faithless Elector’ Laws
States can punish Electors who substitute their judgment for those of the voters.
The Supreme Court unanimously ruled that states have the right to hold Electors accountable. The ruling was just issued an hour ago and the reporting is thin.
NPR‘s Nina Totenberg (“Supreme Court Rules State ‘Faithless Elector’ Laws Constitutional“) apparently wrote up her report ahead of time, because it scarcely refers to the ruling:
The U.S. Supreme Court upheld Monday state laws that remove or fine Electoral College delegates who refuse to cast their votes for the presidential candidate they were pledged to support. The vote was unanimous.
The court majority said that to do otherwise would risk chaos, potentially putting the outcome of the 2020 election in doubt, and opening up new opportunities for manipulation and corruption.
Flawed as the Electoral College system may be, at the oral arguments in May, the justices expressed concern about tinkering with laws that bind the delegates to vote for the popular vote winner in their states.
Justice Samuel Alito observed that if the popular vote is close, the possibility of “changing just a few votes” [in the Electoral College] would rationally “prompt the losing party … to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next president was going to be.”
Similarly, Justice Brett Kavanaugh alluded to what he called “the chaos principle of judging, which suggests that if it’s a close call…we shouldn’t facilitate or create chaos.”
Thirty two states have some sort sort of “faithless elector” law, but only 16 of those remove, penalize, or simply cancel the votes of the errant electors. The 16 are: Michigan, Maine, Colorado, Utah, Arizona, Indiana, Minnesota, Montana, Nebraska, Nevada, Washington, California, New Mexico, South Carolina, Oklahoma and North Carolina.
While the writers of the Constitution originally conceived of the Electoral College as a deliberative body of delegates with discretion as to who they would vote for, that notion quickly evaporated as political parties began to emerge, and by 1796 the selected electors were pledged to cast their ballots for the winner of the popular vote.
CNN‘s Ariane de Vogue (“Supreme Court says states can punish Electoral College voters“) does the same, although she does manage a wee quote from the opinion:
The Supreme Court said Monday that states can punish members of the Electoral College who fail to fulfill a pledge to vote for a state’s popular vote winner in presidential elections.
The vote count was 9-0.
“Today, we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State’s popular vote. We hold that a State may do so,” Justice Elena Kagan said.
Three presidential electors in Washington state, for example, voted for Colin Powell in 2016 rather than Hillary Clinton and one voted for anti-Keystone XL pipeline protester Faith Spotted Eagle. A $1,000 fine was upheld by the state Supreme Court.
In Colorado, the legal outcome was different when Micheal Baca sought to vote for John Kasich instead of Clinton.
Baca’s vote was rejected and he was removed and replaced with a substitute who voted for Clinton. Baca was referred for potential perjury prosecution, although no charges were filed. He filed suit, and ultimately won when the 10th US Circuit Court of Appeals held that while the state does have the power to appoint electors, that does not extend to the power to remove them.
During oral arguments, Frodo Baggins, a hobbit from the “Lord of the Rings” trilogy, became a part of the court’s historical record.In a line of hypothetical questioning, Justice Clarence Thomas used Baggins as a case study.”The elector who had promised to vote for the winning candidate could suddenly say, ‘You know, I’m going to vote for Frodo Baggins. I really like Frodo Baggins.’ And you’re saying, under your system, you can’t do anything about that,” Thomas asked Baca’s attorney, Jason Harrow.”Your honor, I think there is something to be done, because that would be a vote for a non-person. No matter how big a fan many people are of Frodo Baggins,” Harrow said.
I’ve skimmed Justice Kagan’s opinion, which was joined by all but Justice Thomas, who wrote a concurring opinion (which I’ve yet to read), which was joined in part by Justice Gorsuch. It’s a PDF and excerpting requires reformatting I don’t have time for at the moment. But here’s the lede:
(a) Article II, §1 gives the States the authority to appoint electors “in such Manner as the Legislature thereof may direct.” This Court has described that clause as “conveying the broadest power of determination” over who becomes an elector. McPherson v. Blacker, 146 U. S. 1, And the power to appoint an elector (in any manner) includes power to condition his appointment, absent some other constitutional constraint. A State can require, for example, that an elector live in the State or qualify as a regular voter during the relevant time period. Or more substantively, a State can insist (as Ray allowed) that the elector pledge to cast his Electoral College ballot for his party’s presidential nominee, thus tracking the State’s popular vote. Or—so long as nothing else in the Constitution poses an obstacle—a State can add an associated condition of appointment: It can demand that the elector actually live up to his pledge, on pain of penalty. Which is to say that the State’s appointment power, barring some outside constraint, enables the enforcement of a pledge like Washington’s.
Updated to include another bit from the executive summary:
The Electors and their amici object that the Framers using those
words expected the Electors’ votes to reflect their own judgments. But
even assuming that outlook was widely shared, it would not be enough.
Whether by choice or accident, the Framers did not reduce their
thoughts about electors’ discretion to the printed page. Pp. 8-13.
(b) “Long settled and established practice” may have “great weight
in a proper interpretation of constitutional provisions.” The Pocket
Veto Case, 279 U. S. 655, 689. The Electors make an appeal to that
kind of practice in asserting their right to independence, but “our
whole experience as a Nation” points in the opposite direction. NLRB
v. Noel Canning, 573 U. S. 513, 557. From the first elections under the
Constitution, States sent electors to the College to vote for pre-selected candidates, rather than to use their own judgment. The electors rapidly settled into that non-discretionary role. See Ray, 343 U. S., at 228-229. Ratified at the start of the 19th century, the Twelfth Amendment both acknowledged and facilitated the Electoral College’s emergence as a mechanism not for deliberation but for party-line voting. Courts and commentators throughout that century recognized the presidential electors as merely acting on other people’s preferences. [emphasis mine – jhj]
The outcome seemed like a no-brainer to me. The Constitution clearly gave the power to elect the President to the several states, with the Electors are a passthrough. The fact that an ideologically-divided Court was unanimous as to the result would seem to affirm that.
Our erstwhile resident attorney, Doug Mataconis, thought otherwise last August:
As a matter of law, it appears on its face that the 10th Circuit Court of Appeals got this case right and that any laws that purport to restrict how Electors vote in the Electoral College violate the Constitution. In this respect, there are several important facts to keep in mind.
First of all, the Constitution does give states the power to determine who their electors are chosen. While the modern practice has been that electors are selected from slates put forward by the individual candidates and that the slate of the candidate who wins the popular vote ends up being the slate of Electors that meets in December after a Presidential election will match those of the winning candidate, there have been other methods used in the past. For example, at the beginning of the Republic is was common for state legislatures to pick electors without regard to the popular vote. Second, the Constitution also gives the states the power to choose how those electoral votes are allocated. This is why states such as Nebraska and Maine are able to allocate Electors by Congressional District, with the candidate who received the most votes getting the two votes representing the state’s Senators. Third, the Constitution does not require that either the state or the Electors adhere to the popular vote when the Electoral Votes are cast after the Presidential Election.
Beyond these powers granted to the states, though, the Constitution grants the Electors a wide degree of discretion and does not appear to permit either the states or Congress to restrict the right of Electors to cast their vote as they see fit. This is why we sometimes see a handful of so-called “faithless electors” who cast a vote for someone other than the winner of the popular vote in their state and, often, for someone who is not even on the ballot. In doing so, though, these “faithless Electors” are arguably exercising the kind of independence that the drafters of the Constitution intended when they created the Electoral College.
Our resident elections expert, Steven Taylor, took a similar tack back in May:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
The Electors shall meet in their respective States, and vote by Ballot for two Persons…
It is clear: the states appoint electors and electors vote for president and vice president. The people of the United States do not have any constitutional right to vote for president nor any guarantee they would have any specific role in choosing them.
It is my opinion that the Constitution clearly gives the vote to the electors and practice has reinforced this fact (Congress has always counted those votes). One could, perhaps, argue, that the state’s appointment power gives them control of the vote (but that strikes me as a weak argument-and why even have human beings as electors if they have zero agency?). I think, too, one could argue that states can fine the faithless but that the faithless vote still counts. I suppose that the appointment power could give states the right to replace an elector, as per the Colorado case.
although his main point was that the question is largely irrelevant:
Ultimately, given the partisan nature of the selection of electors, it is highly unlikely that an outbreak of faithless electors could change the outcome of an election. It is worth noting that most faithless electors are protest votes from the losing party. Five of the seven faithless electors in 2016 were Democrats. The two GOP examples of faithlessness are the real oddity. Both were from Texas, one vote for Kasich and the other for Paul.
Most elections have such a wide gap between electoral winner and electoral loser that the amount of faithlessness needed to swing the election would be unthinkable. Although an election like 2000 shows how it could matter, given that the final was 271 v. 266 (with one abstention, a Democratic protest).
At any rate, it will be interesting to see what the Court rules, but I don’t think it matters, ultimately. I cannot stress enough that the process of choosing electors is guaranteed to produce loyalists. There is no reasonable scenario in which electors as a group will ever act like a deliberative body. History and logic clearly demonstrate this. Whatever ruling the Court makes will be at the most marginal of the margin.
That’s certainly right. Although it would certainly have been possible for faithless Electors to have flipped the 2000 election—in which winner George W. Bush should have won by four Electors but won by five because a DC elector abstained to send some message or another and many were calling on Republican electors to defect to Hillary Clinton in 2016. (But Steven is right: the DC elector wouldn’t have been so cute if it would have changed the outcome and it was folly to think Electors pledged to Trump were somehow going to flip en masse to his Democratic opponent.)