A Backward- and Forward-Looking Assessment of the Supreme Court’s “Faithless Elector” Cases: Part One in a Two-Part Series

Posted in: Election Law

There is both good and bad news in the pair of cases, Chiafalo v. Washington and Colorado Department of State v. Baca, the Supreme Court decided last week, unanimously upholding the power of a state to punish and replace members of the state’s contingent in the so-called Electoral College who fail to cast their votes for the candidate who won the state’s popular-election contest for President. In today’s installment, Part One of a two-part series, let’s get the bad news out of the way first.

The main reason for some disappointment over the cases is that the opinions of the justices—the majority opinion by Justice Elena Kagan and the concurring opinion by Justice Clarence Thomas—were not as well reasoned or careful as a matter of constitutional craft as they could have been. Rejecting the notion that presidential electors are granted by the Constitution discretion to cast their votes with some independence, Justice Kagan for the Court opined first that “the power [each state enjoys under Article II of the Constitution] to appoint an elector (in any manner) includes the power to condition his appointment—that is, to say what the elector must do for the appointment to take effect.” But this interpretation based on the meaning of the word “appoint” can’t be right as a general matter. While some appointees provided for in the federal Constitution, such as Cabinet members, may (because of the larger constitutional structure) be told how to do their jobs post-appointment (under pain of penalty or replacement), surely others—namely, federal judges—cannot. The power the President (with the consent of the Senate) has to “appoint . . . Judges of the Supreme Court” (Article II, §2, clause 2) surely gives neither the President nor the Senate (nor both acting together) the power to punish and replace justices who may vote in cases differently than their appointers wanted or even differently than the justices indicated they would prior to becoming justices.

Perhaps an even more relevant analogy is selection of people to serve in the United States Senate. During the days when U.S. senators were “chosen” (a synonym for appointed) by state legislatures (until the turn of the twentieth century), the senators were free to cast their votes in the Senate, immune from punishment or removal by the state legislatures that selected them. Indeed, in the early days of the Republic, issues of “instruction” (a formal legal device used to bind legislators to follow the specific directives of the people who had elected them) as to the newly created federal legislature were taken up and definitively resolved in a way that ensured senator independence. Shortly after the ratification of the Constitution, Congress discussed a Bill of Rights package. During that discussion in 1789, a motion was made to include in what would become the First Amendment a right of the people “to instruct their representatives.” This proposal was made in part because Virginia, New York, and North Carolina, in ratifying the Constitution, had appended declarations of rights—constitutional wish lists—that included a right to instruct, a device that was recognized as legitimate in several state constitutions with regard to the state legislatures. Yet a congressional committee voted down the language recognizing a right to instruct members of Congress, and the Bill of Rights package that was sent by Congress to the states for ratification made no mention of instruction. Ever since, no one has suggested that senators are subject to formal instruction, or its cousin (also recognized in many state constitutions for state elected officials), the power of recall (that is, voter-initiated removal of elected legislators, executive officers, and judges from office prior to the end of an official’s term.)

The same is true for senators who are temporarily “appoint[ed]” by state governors under the terms of Clause Two of the Seventeenth Amendment (an amendment which, of course, more generally codified the replacement of legislative election with popular election of senators). No one thinks that a governor who appoints a U.S. senator (until an election can be held) has the power to dictate how the senator must vote in D.C., or to punish or replace the senator on account of a disappointing voting record in the Senate.

So Justice Kagan’s textual reliance on “appoint[ment]” power is not particularly persuasive. Nor is her rejection of the textual arguments advanced by the electors seeking to protect their independence. She reasoned that, even if the framers “expected” electors to enjoy independence, “nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion . . . .” But such a conclusion depends on how carefully you examine the words of the Constitution read as a whole. The electors in the case did point to constitutional text that leaned in their direction. First, the word “elector,” which comes from “elect”—or choose—generally means someone exercising a choice, someone doing the actual selection. This ordinary meaning is backed up by the Constitution itself; in the only other places (outside of the Electoral College) that the Constitution refers to electors (in Article I for House elections and the Seventeenth Amendment for Senate elections), “elector” means voter: the person with the power to make the choice. For example, the fact that states under Article I have the authority to prescribe qualifications for the “electors” for the House of Representatives (i.e., the people of the state who vote in House elections) surely does not permit states to mandate whom citizens must vote for in House contests.

This textual argument about the meaning of “elector” is reinforced by the provision that requires Electoral College members, when they select a President, to “vote by ballot.” Justice Kagan pooh-poohed this textual provision too, concluding that whether people exercise independent judgment or not, when they formally render their input they can be said to be “voting” by “ballot.”

But as I (along with a co-author) have explained in a prior column dealing with another aspect of presidential elections (resolution of elections by the House of Representatives), the term “ballot” in the Constitution refers to a secret vote. (Webster’s first two definitions of “ballot” are “a small ball used in secret voting” and “a sheet of paper used to cast a secret vote.”) Throughout history, one reason for requiring secrecy has been the prevention of bribery and coercion, since no bribe/threat can be effective unless the briber/threat-maker can know how the other actor subsequently behaved. And secrecy—especially when, as would need to be true in any effective corruption of a presidential election, multiple people are bribed or threatened—makes it hard to know which voter did what. The framers were particularly worried about corruption or undue influence (especially of foreign powers) in the selection of Presidents, which is why the word “ballot” appears in the Constitution only in connection with the Electoral College and House selection of Presidents when the Electoral College fails to generate a winner. In the Chiafalo and Baca cases it isn’t clear why secrecy of the votes of the electors in question (Mr. Chiafalo et al.) was not maintained, but the general point is that secret balloting doesn’t easily lend itself to plenary state control over how electors cast their votes (although as I explain in Part Two of this series, a clever state may be able to overcome this challenge).

To be sure, an anti-corruption rationale for secrecy does not necessarily mean electors are supposed to exercise independent judgment in voting, but it certainly was a feature of the Constitution’s text that Justice Kagan should have explored for its implications about the workability of coercion by states. (Perhaps Justice Kagan is not at fault here, since the brief for the electors inexplicably gives up this issue by saying the question of elector-vote secrecy is not “relevant.”)

And another feature—also largely ignored by the Court—of the Constitution’s text concerning the presidential election process, namely, the time lag between the selection of electors and the casting of their votes for President that the Constitution contemplates, does affirmatively argue in favor of some constitutionally guaranteed discretion. Much can happen in between an election, currently in early November, when electors are chosen, and the time when the electors meet and cast their ballots, currently in mid-December (and at earlier points in history the lag time may have been larger). Justice Kagan did mention that a candidate could die during this period (and cautioned that “nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate”), but that observation merely scrapes the surface of the problems that may arise if electors are deprived of all discretion whatsoever. Imagine that Biden beats Trump in November but at Thanksgiving Biden has a stroke and is in a coma. Or imagine that Trump beats Biden but the first week of December Trump’s tax returns are publicized revealing he has been money laundering for the Russians. It would be odd to think the framers of the Constitution would not have wanted electors to be able to take account of these changing circumstances, even if they ought to vote in line with the views of the people who selected them as a general matter.

Justice Kagan’s treatment of presidential-election history is also less than fully persuasive. Let us put to one side less impactful historical missteps, such as Justice Kagan’s suggestion that the Twelfth Amendment’s technical tweaking of Electoral-College mechanics in 1804 was brought on by “a pair of fiascos—the [1796] election of two then-bitter rivals [John Adams and Thomas Jefferson] as President and Vice President, and the tie vote that threw the [1800] election into the House.” It was primarily the 1800 Electoral-College tie that ended up in the House (and almost resulted in Aaron Burr becoming President instead of Jefferson) that triggered the move to the Twelfth Amendment; having a President and Vice President of different parties in 1796 did not generate any great momentum for constitutional reform, with some observers at the time actually arguing such an arrangement amounted to a beneficial check and balance (odd as that may sound to modern ears.)

But more troubling than the failure to note specific historical nuances is that Justice Kagan’s overall deployment of history is somewhat wanting. She observed that for almost all of the nation’s history, presidential electors themselves have overwhelming followed the wishes of the voters (or legislatures, in the early days before popular presidential elections) of the states. She inferred from this that everyone agreed, as a legal matter, that the electors’ job is to do nothing other than ratify and implement the wishes of the people who select them. Maybe electors generally have been quite deferential to the wishes of the selectors (although, as Justice Kagan conceded, there have been hundreds of instances—including in the election of 1796—of elector independence, or “faithlessness,” a less flattering term.) But all that necessarily shows is that electors (and others) may have felt there is a moral or prudential duty for electors to defer—not that they could be legally compelled (under pain of penalty or replacement) to defer. Justice Kagan pointed out that many states have been requiring electors to take a pledge to follow the wishes of voters since about 1900, but—at a key but understated moment in her opinion—she observed that state laws seeking to impose punishment upon or replacement of electors who show independence go back only 60 years. That means for the first 170 of the Constitution’s 230 years there was no tradition of legal compulsion for electors. Justice Kagan characterized the imposition of punishment as simply an extension of the tradition of requiring pledges (itself something not done for the Constitution’s first century), but if the question is whether electors enjoy legal independence or not, then the relevant tradition ought to focus not on moral-suasion devices but on legal sanctions.

Justice Thomas’s concurrence (which I shall not spend as much ink on, given that it doesn’t appear to have much traction on the Court going forward) has its own problems. Justice Thomas concluded that states can bind and punish independent-minded electors not because Article II gives states any power, but because the Tenth Amendment (and the principle for which it stands) reserves power to the states to do anything that is not forbidden by the federal Constitution. The analytic problem with this approach (which is a replay of his unsuccessful argument in U.S. Term Limits, Inc. v. Thornton) is that states didn’t have any power with respect to presidential elections before the Constitution created the presidency and a method for selecting Presidents. So there was no pre-existing state authority (over federal electors) that got “reserved” to the states by the Tenth Amendment. Justice Thomas relatedly argued that Article II places duties on states, but confers no powers on them. Yet a provision can impose duties and confer powers at once, as Article II clearly does, by requiring states to appoint electors but by giving states discretion about how to do so. The question in these cases is whether states have properly exercised that discretion under the larger structure of presidential selection laid out by the Constitution, and so the Tenth Amendment, surely a very important structural pillar of the Constitution generally speaking, is not particularly helpful in resolving the dispute.

So much for the bad news. It is possible that the narrow result in these cases could have been defended by better opinions. More importantly, it turns out that the question of elector independence isn’t that big a deal in any event because, as I will explain in Part II, even had these cases come out the other way states have at their disposal plenty of ways to reduce “faithlessness” if they want to. And in Part II I will also identify smart and good things the Court said in these cases, bearing on future prospects for presidential election reform.

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