The National Popular Vote movement reflects a shocking failure to understand the consequences that would ensue should such a system go into effect.
As a result of having fewer popular votes than Hillary Clinton, as well as his controversial candidacy more generally, there’s some discussion whether Trump’s Electoral College electors could vote for someone else for president. Given that somewhere over 100 electors throughout U.S. history have voted for candidates other than those they were elected to vote for, it’s an interesting constitutional question even outside the contours of this particular election. My sense is that, constitutionally, the decision of whom to vote for is entirely up to the electors themselves, even in states with laws requiring electors to vote for the candidate they were elected to vote for.
According to the Congressional Research Service, twenty-five states neither require electors to pledge to vote for the presidential candidate they were elected to vote for, nor do they respond to or punish electors who vote for someone else. Electors in these states may legally vote for whomever they wish.
The other twenty-five states and the District of Columbia impose various obligations on electors. Most require no more than a pledge from electors to vote for the candidate they were elected to support. A few states provide for the replacement of “faithless” electors should an elector attempt to vote for a candidate other than whom they pledged to support. A few states provide criminal penalties for faithless electors.
The question concerns the constitutionality of these various state laws.
Article II, section 1 of the Constitution provides,
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.
An argument in favor of the constitutionality of state provisions binding electors to vote for the candidate they were selected to vote for follows from this provision: The “manner” in which a state legislature directs its state to appoint electors, the argument goes, can include requirements that those electors actually vote for whom they were elected to support.
Some case law exists supporting this interpretation. In the 1952 case of Ray v. Blair, the Supreme Court upheld a pledge requirement for candidates running for the position of elector for the Democratic Party in Alabama to be listed on the state’s primary ballot. (Apparently at the time, Democratic presidential electors in Alabama were selected by popular vote in the state’s spring primary election.) Justice Reed wrote for the Court:
A state’s or a political party’s exclusion of candidates from a party primary because they will not pledge to support the party’s nominees is a method of securing party candidates in the general election, pledged to the philosophy and leadership of that party. It is an exercise of the state’s right to appoint electors in such manner, subject to possible constitutional limitations as it may choose.
The last sentence suggests the Constitution authorizes state-level pledge requirements as part of Article II’s provision requiring state governments to “appoint [electors], in such manner as the legislature thereof may direct.”
Despite the broad language of that sentence, the Court’s holding in the case was narrow. Reed wrote that the holding in Ray applied only to an elector’s name being placed on a ballot for a primary election. Reed wrote just a few paragraphs later that even if such pledges could not be constitutionally enforced regarding the elector’s actual Electoral College vote after the general election, that did not imply eliciting the pledge as a condition for a party selecting an elector was also unconstitutional.
I think there’s reason to doubt whether Ray would be upheld by the U.S. Supreme Court today, at least as it pertains to state laws requiring pledges, and, even if it were, I doubt that the Supreme Court would extend its reasoning beyond the facts in Ray to uphold a state law taking action against a faithless elector.
In particular, the arguments the Supreme Court developed in U.S. Term Limits, Inc. v. Thornton (1995) plausibly cast the issue in a different textual light than discussed in Ray, suggesting that states cannot add additional qualifications to electors beyond those stated in the Constitution itself.
In U.S. Term Limits, the Supreme Court struck down an Arkansas law placing term limits on congressional candidates in the state. The Court developed several lines of argument to support its decision, most narrowly that the Constitution itself specified the qualifications for being a U.S. House member or U.S. Senator (Art. 1, sec. 2, cl. 2, and Art. 1, sec 3, cl. 3, respectively), and states (nor Congress for that matter) couldn’t impose additional qualifications for those offices.
These grounds are suggestive for Electoral College electors as well. As with House members and senators, Article II expressly states qualifications for being an elector, to wit, “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” This militates against a broad reading of the Court’s interpretation of the “manner” provision in Article II in Ray to include substantive requirements beyond merely specifying a process to select electors. Additionally, the Constitution itself also expressly identifies whom electors cannot vote for. According to the Twelfth Amendment, electors cannot vote for a presidential candidate from their own state if they vote for a vice-presidential candidate from their own state (and vice versa).
So the Constitution already articulates qualifications for who can and who cannot be an elector, and already articulates limitations on whom electors can vote for.
To be sure, there are other structural and policy arguments that need to be visited. Nonetheless, the arguments in U.S. Term Limits provide a more-careful reading of the Constitution itself relative to the general policy arguments of the Court in Ray. It seems a reasonable reading of the text to conclude that the Constitution itself, as it were, regulates the field in this matter, and states have little discretion additionally to restrict the votes of their electors beyond those imposed by the Constitution itself.