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Wanted: Faithful Electors

Last week, the Supreme Court heard oral arguments via teleconference in two cases brought by so-called “faithless” presidential electors—members of the Electoral College who voted for a presidential candidate other than the winner of their state’s popular vote (Hillary Clinton, in these cases). In one case, Colorado Department of State v. Baca, the elector was automatically removed upon casting his vote and replaced with an alternate elector who voted for Clinton as required. In the other, Chiafalo v. Washington, the electors’ votes were counted, but they were fined $1,000 pursuant to state law.

The constitutional question in these cases, as I shall try to demonstrate below, ultimately boils down to who, in the first instance, possesses the constitutional authority to choose the president—electors or states?

The constitutional provisions at issue come from Article II and the Twelfth Amendment. Article II, Sec. 1 states:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Twelfth Amendment, altering the voting procedures in response to the partisan hijinks in the election of 1800, continues:

The Electors shall meet in their respective states and vote by ballot for President and Vice-President. . . and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States. . .

Some framers, most famously Alexander Hamilton in Federalist 68, anticipated a system in which the states select a refined group of electors to utilize their own judgment to select the president—they would be “faithful” only to their own wisdom and judgment. But the system never operated that way, with states instead selecting, on a partisan basis, electors already pledged to certain candidates. Today, this almost exclusively takes place through a statewide, winner-take-all popular vote, with the electors expected to be “faithful” to the will of the majority. So are electors simply the means by which the state exercises its authority to elect the president (utilizing whatever methods it chooses)? Or do they constitute an independent body tasked with selecting the president?

Text and Practice

The electors in these cases argue that the language used in the Constitution describes a body of independent voters who bear the ultimate responsibility for choosing the president. The word “elector” itself, they argue, essentially meant and continues to mean “one who chooses,” a definition that is backed up by the use of the same word defining the parameters of congressional electors in Article I. The word “vote” similarly implies the right to choose.

The state’s power, the electors claim, is limited to appointment. Once electors are appointed, the constitutional language indicates no role for the states. It is up to the electors themselves to “vote,” “make distinct lists,” “sign and certify” the lists, and “transmit” the lists to Washington.

Moreover, the electors argue, historical practice shows that no elector had ever been punished for his or her vote until 2016.

Finally, because electors hold an office established by the Constitution for the purpose of selecting a federal officer, they perform a “federal function,” which cannot be interfered with at the state level. The electors similarly note the importance of U.S. Term Limits, Inc. v. Thornton, which held that states could not place further qualifications on members of Congress beyond the ones identified in the Constitution.

The electors walk at least two fine lines in their argument. First, they do not argue that states are forbidden from requiring a pledge from their electors to vote for a particular candidate. (We’re not going back to Hamilton’s model of deliberating aristocrats.) They are somewhat limited on this point by the Court’s 1952 decision in Ray v. Blair, which upheld the use of such pledges by parties when choosing their slate of electors. Quoting McPherson v. Blacker (1892), the Ray court suggested that the role of elector in our modern system was “simply to register the will of the appointing power [the people through popular suffrage] in respect to a particular candidate.”

The electors, therefore, concede that such pledges and the partisan elector-selection method are constitutional, but simply argue that they are not legally enforceable. This may seem like a ridiculous distinction to make. But as the electors’ counsel, Lawrence Lessig, argued last Wednesday, this simply necessitates a division between legal limits and political/moral limits. Such a distinction may be seen in the kinds of “pledges” political candidates take when they ask us to “read my lips.” When promises are broken, there can be political consequences (in an elector’s case, the sacrifice of any future influence in the party), but there can be no legal ramifications.

If the Constitution established a system in which the states had complete control over the votes cast, why create a middleman? 

Second, the electors seek to carve out a narrow power of the state to remove electors in other circumstances (if the elector refuses to show up for the vote, is convicted of bribery, etc…). This is perhaps the weakest link in their position, and several justices, especially Justices Kavanaugh and Alito, seemed concerned that the electors’ position would eliminate any power of the state to control genuinely rogue electors. Justice Breyer indicated that the electors ought to walk the narrow line by claiming, “the only thing a state cannot do is to punish the elector for the way he actually votes.”

The states, on the other hand, argue that the text of the Constitution does not require electors to have ultimate freedom in their choice for president. Words like “elector” and “vote” may often imply choice, but they don’t necessarily require it. Their primary textual argument—iterated time and time again at oral argument—is that the default rule is that “the power to appoint includes the power to remove.” And this principle seems plausible when considering the reasonable removal of electors for bribery or refusal to participate in the vote. All sides agree that states have the authority to select electors in any way and for any reason—including partisan ones. Why should they not have the authority to make replacements?

They also point to historical practice, especially the practice immediately following the founding. Bound electors emerged almost immediately, indicating that “elector” and “vote” were not taken to imply free choice. Moreover, the Twelfth Amendment, passed in response to the partisan screw-up of 1800, which almost saw the Democratic-Republican vice-presidential candidate Aaron Burr become president, seemed to accept and build around the common practice of binding electors by requiring separate ballots for each office, thus preventing organized, partisan electors from strategically undermining the opposing party. 

The practice from the founding to the present, they argue, should serve as a guide if one finds the text of the Constitution ambiguous. The system, as it operates today, revolves around pledged electors, and when the people vote, they expect the electors to follow the majority. Roughly half of the states require legally binding pledges from their electors, and there have been several examples of states replacing electors for failure to appear for the vote. To upset that system by explicitly recognizing an elector’s right to ignore the popular decision may unnecessarily invite “chaos.” Finally, they point to both Ray and McPherson as evidence that the Court has embraced the new reality and established that the electors’ job is to serve as the agent of the state in the selection of the president.

Who Elects the President?

Though the justices seem to be leaning in their direction, the states’ argument never quite hits the mark on the key issue: do states really possess the power to control electors’ votes? They marshal considerable evidence that pledged electors are a long-standing practice that emerged almost immediately following the adoption of the Constitution; that states can and have removed electors for other reasons; that not all framers agreed with Hamilton’s vision of independent-minded electors; that the Twelfth Amendment accepted the practice of binding electors; and that previous Court decisions have leaned heavily in their direction. But none of these arguments exactly hit the mark, in that none of them show any textual or historical evidence that the state can actually control an elector’s vote.

The core issue, I believe, was broached only briefly in oral argument by Justice Kavanaugh. “What is the purpose of an elector?” he asked Colorado Attorney General Philip Weiser. What he was getting at is, if the states’ position is correct, why does the Constitution establish the office of elector at all? The Constitution grants to the states a certain number of “electors,” not “electoral votes.” If it established a system in which the states had complete control over the votes cast, why create a middleman? Why not simply grant a certain number of votes to be cast by a state government in the manner they see fit?

Weiser responded that the Electoral College simply gives the states a choice: choose a group of independent-minded free agents, or instruct your electors how to vote. But this answer is unsatisfying. Certainly, if the Constitution simply gave a certain number of votes to a state to be cast in any way it saw fit, the state would be free to create an independent body of electors on its own. But the Constitution requires that every state select a group of such electors and stipulates the manner in which they operate. The unavoidable conclusion seems to be that the electors, not the states, were to have the ultimate choice.

An Evolving System

The evolution of the Electoral College is a prime example of how much flexibility the Constitution’s text allows for future generations. By authorizing the states to select electors in any manner they choose, it allowed for the development of a system entirely different than the one (at least some) framers envisioned—no “living constitution” necessary.

The latest attempt to change the system without changing the Constitution—the National Popular Vote initiative (NPV)—would move even further from these framers’ ideas by having states bind their electors to the winner of the national popular vote rather than the state vote. Such a system would probably be allowable within the meaning of the Constitution (at least as the electors present its meaning in these cases). A ruling for either party in these cases would do little to derail the NPV, but the prospect of such changes should prompt us to consider both the limits and the propriety of past and future evolutions.

For better or worse, the Constitution established a body of electors to choose the president. So while there is considerable flexibility for evolution in the electoral system, that flexibility has its limits—the electors must elect.

As both political parties embrace more and more radical and divisive candidates, rhetoric, and ideologies, we might reasonably expect an uptick in the number of “faithless electors.” Should one of these votes ever alter the outcome of an election, it would certainly prompt a political crisis of colossal proportions, and that possibility may prompt the justices to rule in favor of the states. Yet there is an irony about this potentially disastrous hypothetical: it is precisely what some framers, like Hamilton, expected of the elector—that he be “faithful” to his judgment, not the majority. And of course, if we actually filled the office with those distinguished by their statesmanship and talent, instead of simply by the R’s and D’s after their names, perhaps the prospect of electors influencing our future wouldn’t be so terrifying.

Reader Discussion

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on May 22, 2020 at 08:28:30 am

Excellent article! Grove is four for four with L&L Blog.

Other than wild deficit spending, I can't think of another bipartisan issue nowadays than "faithful electors.'' Each political party wants its electors to be faithful to and legally-bound by the pledge they made to the party (although each party would like to see legally-authorized infidelity on the part of the other party's electors.)

I followed this case, including listening to the oral argument. Some observers might say flip a coin. I say bet on the states. Scotus under Roberts is more afraid of political chaos than the CCP is of dissent in Red China.

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Paladin
on May 22, 2020 at 09:11:51 am

It is also relevant that Hamilton's view in Fed 68 doesn't really represent the debates at the convention either.

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Jeremy Bailey
on May 22, 2020 at 13:33:05 pm

"And of course, if we actually filled the office with those distinguished by their statesmanship and talent, instead of simply by the R’s and D’s after their names, perhaps the prospect of electors influencing our future wouldn’t be so terrifying."
Sorry! THIS would be chaos as those "distinguished" actors have already been observed to have failed us.
Just who is distinguished?
Just what talents? Is he who has demonstrated great talent in social media a proper candidate for "elector"
Is a distinguished professor of Law more or less likely to advance the will of the people?
As Bill Buckley averred regarding governance by the first 50 names in the Boston Phone Book, perhaps we should consider the first 50 plumbers in the local AFL-CIO union. That IS talent.

I think that what is missing here is a structural analysis of the issue. Should the faithless electors prevail, what becomes of Federal structure. Same with NPV!
Are we at long last prepared to give up the ghost of Federalism, a topic quite often laden with paeans of almost rhapsodic effulgence by our own Legal Professoriate here at LLB. Both NPV and Faithless elector cases will further diminish, vitiate, if not destroy the last vestiges of Federalism. The latter will, in Groves supposition, consign our Fate to the "credentialed" elite, Jefferson's aristoi (always reminded me of an ante-bellum Southern platation master) or Hamilton's Statesman. The former will push us ever closer to "direct democracy", a regime feared by ALL the Founders and the reason for the Electoral college in the first place.
Moreover, BOTH are in direct opposition to both the Declaration's these that for governance to be just it requires the "consent of the governed" and COTUS' similar underlying predicate.
How is it then that a "governed" of a State may be said to have given their consent when their votes are disregarded / nullified in favor of the votes of their neighboring States? under NPV. How is it that consent is provided should a bloc of state electors prove faithless to the EXPRESS will (consent) of the citizenry?
Are we now to accept that some proforma structure (Electors) must assume Constitutional precedence over this regime's most FUNDAMENTAL predicate - consent of the governed?
We have at times here at LLB enjoyed vigorous debate on the topic, "Does the DOI inform the Constitution?"
Now, perhaps is an appropriate time to consider the question once again.
If we are to accept either of these proposals / cases, what is the effect upon consent of the governed?
Are some people, i.e., those with the "winning candidate" more equal than others and those votes will extinguish the votes of "losing states"
Are some states more equal than others and as a consequence thereof, the losing States votes will be given to the winning states.
Why not simply determine that since under NPV the Democrat candidate for president won, let's just give the losing States votes for its OWN US Senator to the Democrats notwithstanding the fact that the GOP candidate garnered more votes, or that there were more Democrat US Senators elected, so let's give all votes to the Democrats (facetious, of course, but it could logically follow).
Unless, we are prepared to allow some subsidiary clause / structure / requirement of COTUS to OVERRIDE our most fundamental regime preicates of consent, equality AND Federalism, we should not support either NPV or the Faithless Electors.
Now to continue my rant.
The electoral College was the 2nd major mistake of the Founders (slavery being the first).
It was OVERKILL and was unnecessary. Indeed, there was, and continues to be reason to fear the effects of the mob ?direct democracy / an errant and oppressive majority BUT Madison had already constructed sufficient safeguards against such an occurrence, Separation of Powers, Bi-Cameral Legislative and Federalism. This was "vanity" on Madison and Hamilton's part in thinking that they could "social engineer" the regime and safeguard it against an imagined threat. In so doing they weakened the foundational predicates of the regime. Vanity and Overkill. Hey, isn't that a character trait of the elite "distinguished" statesman?

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gabe
on May 22, 2020 at 13:59:22 pm

One slight edit:
It is not the electoral College per se that is evidence of vanity; rather it is the notion of elite electors that is so, The electoral college, given "bound" electors would have provided sufficient practical and philosophical support for Federalism.
Madison, perhaps as a result of some recalcitrant States rights supporters at the convention and in an effort to assuage the concerns of those supporters over the independence of the States may have yielded too much when granting State Legislatures the freedom to "choose" their electors for Federal elections.

BTW: Other than the inclusion of the word "vote" in the text of the 12th Amendment, there is nothing in COTUS which prevents the State from binding electors - doesn;t mean they have to that they cannot do so.

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gabe
on May 22, 2020 at 14:05:28 pm

Three small points.

The way to eliminate any controversy is to require the college to use the secret ballot. This would probably require an amendment. You can't bribe or coerce someone to do something if you can't check whether they've done it.

If you are interested in a better electoral process, you probably want to read up on various election techniques. A substantially better process would use any variant of ranked voting.

The one voter-one vote approach is antiquated and highly inefficient. It is well known to be the source of the two party system of government. It is the reason why in the last election your choice was Hillary or The Donald.

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Scott Amorian
on May 22, 2020 at 14:14:57 pm

Keep in mind the context in which the electoral college was created. It was a product of the Constitutional Convention. It was held behind locked doors. The public was not to know what occurred in the debates. The members of the Convention were well aware of the value of secrecy in decision making. Certainly they of all people would have been fully aware of the value of conscience and the need for secrecy in such an important act as electing a president.

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Scott Amorian
on May 22, 2020 at 15:14:53 pm

Is one then to suppose that Madison would give precedence to "secrecy" over "consent of the governed"
NOTHING in Madison's public or private correspondence would indicate such an anti-republican posture!

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gabe
on May 22, 2020 at 15:17:02 pm

Well if the binary choice were between national governance by the Harvard faculty or by the first 50 names in the Boston phone book, I'd go with the Boston phone book. But as a matter of originalism, since Bill made the electoral choice one between the Harvard faculty and the first 2000 people in the New York City phone book, I'd go with the faculty, although Buckley might have made the choice a whole lot easier by not involving the Harvard faculty.

And I agree with every other word of the Gabester except that part where he agrees with the Democrats on the Electoral College, which, other than Hillsdale College, may be the only college of true value remaining in America.

What makes this and other "faithful electors" cases so fascinating is that neither party knows quite how to play the matter in the context of the Democrat Party's insidious campaign to extend the 17th Amendment (one of Progressivism's many Original Sins) to encompass direct election of the president, which would mean "Stars and Stripes and Democrats Forever."

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Paladin
on May 22, 2020 at 15:55:58 pm

Paladin:

Me in agreement with the dopey Dems on electoral college?????
My edit should make it plain that the electoral college is workable in view of pre-17th Amendment understandings (and even now) and support for Federalism PROVIDED that the Electors ARE bound. Grove (he must be joking) would have our votes potentially overridden by the "distinguished" amongst us. I know some pretty "distinguished" pipefitters. even considering their ability to unclog effluent blockages, I would still prefer my vote be counted - even if my side loses.
Some would have us allow our votes, our consent to be vitiated in order to advance the newly divined foundational republican predicate of secrecy.
My vote still would be extinguished.
To permit, electors to secretly (or not so secretly) vote for whomever the whim strikes them, is to deny my vote, deny my consent.
The electoral college CAN ONLY support Federalism principles if and only if the electors are bound to abide by the will of the citizens of the State in which they reside and vote. To do otherwise is to engender the possibility that faithless electors may actually change the outcome of a Presidential election and frankly is subversive of Federalsim.
No - keep the college (and send money to Hillsdale) and let both Hillsdale and the Electoral College remain bound to the consent of its voters / administrators and faithful to its founding principles.
As for "proportional representation / voting, what the heck else IS Federalism except "proportional" representation, albeit at the level of the STATE?

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gabe
on May 22, 2020 at 16:27:17 pm

This is what I reacted to. Do I misunderstand you?

"The electoral College was the 2nd major mistake of the Founders (slavery being the first).
It was OVERKILL and was unnecessary. Indeed, there was, and continues to be reason to fear the effects of the mob ?direct democracy / an errant and oppressive majority BUT Madison had already constructed sufficient safeguards against such an occurrence, Separation of Powers, Bi-Cameral Legislative and Federalism. This was "vanity" on Madison and Hamilton's part in thinking that they could "social engineer" the regime and safeguard it against an imagined threat. In so doing they weakened the foundational predicates of the regime."

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Paladin
on May 22, 2020 at 16:54:40 pm

Paladin:

No, you did not. It was my poor phrasing.
That is why i mentioned my edit in which I clarified my "vanity" comment as well as my position on Electoral College.
The college is fine PROVIDED that the electors are bound to respect the states popular vote. Under such a protocol, Federalism will be protected. The State will vote AS a state and will do so in a manner that reflects the citizens preferences.

Allowing the electors to vote their own conscience, eo ipso, vitiates the consent of the citizenry as well as the integrity of the State as a State (under NPV).
Madison appeared to be slaying an imaginary monster by allowing for the "aristoi" to overrule the citizenry.
I believe that he had already so structured the republic as to preclude the appearance of that particular monster. By allowing for the possible negation / nullification of the peoples vote - consent - a foundational predicate along with "equality" was subject to negation.

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gabe
on May 22, 2020 at 17:48:25 pm

"Oh, now I see," said the blind man.

I agree and think the Court 9-0 will sustain the states' positions out of concern for election chaos. The Court is wrestling to find a limiting principle as to state post-vote power to control electors. Once the concession is made (and it has been conceded) that a state can nullify the vote of an elector who took a bribe then I see no principle limiting state power to nullify an elector's vote that is contrary to state law and the legal conditions established when the elector was selected.

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Paladin
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on May 28, 2020 at 06:27:13 am

[…] Department of State v. Bacca, pose the most important questions this term for originalism. They concern the ability of presidential electors in the Electoral College to exercise their own legal discretion in the choice of President. In the […]

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