Textual originalists can disregard original intent - and that's a good thing.
It is difficult to overstate how much of a catastrophe the “faithless electors” Chiafalo case is for originalism. It is not the case’s effect on the operation of the electoral college that is so disastrous. Rather, it is the reasoning of the Supreme Court’s decision. Chiafalo largely portrays itself as an originalist decision, but it abuses originalist methods to reach a clearly incorrect result. But the worst part is that not a single justice, including the originalists, discerned the original meaning, even though it should have been obvious to the entire Court.
The case concerns whether the states can influence or control the votes of the presidential electors (that is, the members of the Electoral College). The state of Washington imposed a $1,000 fine if an elector did not vote for the candidate that he had pledged to support. Colorado had a different law that allowed the state to remove an elector from his position if he did not vote for his pledged candidate. In a decision written by Justice Kagan for eight justices, the Court held that the states could pass either law. Justice Thomas agreed with the result but reached it through different reasoning.
A Worse Noel Canning
In some respects, Chiafalo resembles another originalist failure—the Noel Canning case, where Justice Breyer’s opinion for the Court adopted a broad interpretation of the President’s recess appointment power. As in Noel Canning, the Court ignored the obvious import of the constitutional language and relied upon practice to buttress its weak originalist case. But Chiafalo is much worse than Noel Canning for two reasons. First, the practice that Noel Canning relied upon was much older (arguably dating from 1823) than the practice relied upon by Chiafalo (which dates from the 1900s at the earliest and probably begins only in the 1980s).
Second, and more importantly, in Noel Canning the originalist justices refused to sign on to Justice Breyer’s obviously mistaken opinion, calling it out for the travesty it was. Instead, Justice Scalia wrote for four justices articulating the correct originalist interpretation. But in Chiafalo, all of the justices except for Thomas signed on to Kagan’s awful opinion. And no justice defended the obvious originalist position that was laid out for them on a silver platter by Harvard Law Professor Larry Lessig.
The Constitutional Text
The originalist evidence that the states cannot influence or control the electors is overwhelming. The Constitution establishes a two-step process for the electoral college. The state legislatures decide how the electors are to be appointed. And then the electors decide, based on their own judgment, which presidential candidate to vote for. (Congress also has a limited role.) The Constitution provides:
2: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . .
3: The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate.
The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted . . . .
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
This description suggests that the states have the role of selecting the electors and the electors then vote based on their own judgment, which is not subject to state control. After all, the state is merely given the power to “appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Appointing an elector would not normally be understood to give authority to control how the elector votes.
Moreover, the provision refers to the persons appointed as “electors” who “vote” and do so by “ballot.” Each of these terms would normally suggest a person who makes the decision based on his own judgment rather than being controlled by someone else, such as the appointer.
Kagan’s Weak Arguments
Justice Kagan attempts to rebut these indications through some contrived and weak counterexamples. For example, she says that voters sometimes have “no real choice because there is only one name on a ballot (consider an old Soviet election, or even a downballot race in this country). Yet if the person in the voting booth goes through the motions, we consider him to have voted.”
But this misses the point. That someone is said to vote when there is only one candidate running does not mean that the person can also be said to vote when they are legally obligated to vote for one of a large number of candidates who are running. That Kagan can imagine these weird hypotheticals does not tell us about the meaning of the term “voter” in the context of the presidential election that the Constitution describes.
These points about the role of appointments and voters are strongly confirmed by other situations in the Constitution. The original Constitution provided for state legislatures to select the Senators. But no one argued that this allowed the state to pass laws that bound Senators as to how to vote. Similarly, the Constitution provides for the appointment of federal judges by the President with the advice and consent of the Senate, but no one argued that this appointment power allows the President and Senate to control how the judges vote.
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. As progressives like Kagan love to repeat, Chief Justice Marshall told us it is a constitution we are interpreting, not a code. That line is often misinterpreted as suggesting that the Constitution can be updated to reflect modern circumstances. It means nothing of the kind. Rather, it means that the Constitution is a short document and therefore we should not expect the level of detail that a code provides. Once the Constitution suggests that electors can vote at their discretion, we should not expect a repetitive reminder that the states cannot control them.
Justice Kagan also dismisses evidence from Alexander Hamilton and others that they believed the electors would enjoy independence, because Hamilton was not able to reduce his “thoughts about electors’ discretion to the printed page” in the Constitution. Again, this is weak. No one is arguing that Hamilton’s belief here is binding like constitutional text. Rather, the point is that Hamilton, who is normally considered a persuasive contemporaneous interpreter of the Constitution, apparently believed that the Constitution protected the independence of the electors. Sure, Hamilton could be wrong, but this evidence of the meaning of the language is hardly to be dismissed as irrelevant or unimportant.
Finally, the Court relies on what it deems to be practice in the form of state customs and laws concerning the electors, but yet again its arguments are feeble. The Court notes that relatively early on electors announced who they would vote for. But that provides no support for laws that constrain elector discretion. People running for office typically make campaign promises, but no one believes that the government can legally prevent the elected candidate from changing his mind or breaking his promise. Indeed, when elections were held for delegates to the ratification conventions, antifederalists who opposed the Constitution received more support than federalists who supported it, but our charter was enacted because a significant number of the antifederalists changed their minds at the conventions.
The states did not even require pledges until the 20th century and such pledges are hardly a precedent for an enforcement procedure to ensure the electors follow their pledges. These enforcement procedures were not enacted in the small number of states that now have them until the 1980s. This modern practice is neither evidence of the original meaning nor a longstanding custom that commands serious consideration.
Overall, the case for elector independence is overwhelming. While I do not expect the four progressive nonoriginalist judges to follow the original meaning, I do expect the originalists to get it right. I am willing to give Justice Thomas a bit of a pass, because he was pursuing his own longstanding theory, albeit one that was misapplied in this case. But what explains the vote of Justice Gorsuch? I believe that Justice Gorsuch has been a great originalist justice so far, although I have disagreed with some of his opinions. But his vote here is an enormous stain on his record. If Chiafalo is the best that originalists can do, that is a damning indictment. Happily, I believe that originalists can and usually do much better.