The Future of Faithless Electors and the National Popular Vote Compact: Part Two in a Two-Part Series

Posted in: Election Law

In Part One of this series, I explained why last week’s opinions in Chiafalo v. Washington and Colorado Department of State v Baca—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—weren’t particularly persuasive. That was, I observed, the bad news.

Some Good News: States Can Reduce Elector Faithlessness in Many Ways

But (one piece of) the good news is that the result in the cases really didn’t matter much because even without state laws of the kind the Court upheld, a state can do much to substantially reduce the likelihood that electors will impetuously exercise their powers contra to the wishes of the voters who selected them.

Even if the Court got it wrong on the question whether an elector, once selected by a state, cannot have her vote compelled or (once formally cast) cancelled out, there is no question that states have broad latitude under Article II of the Constitution to pick whomever they want as electors. What this means is that states can (and should) reduce so-called “elector faithlessness” simply by more carefully vetting the electors who are appointed in the first place.

Putting aside the dispute over whether a state can punish and replace electors after they vote, there has never been a dispute over whether a state can pick electors based on a (very firm and well-informed) prediction of how they are likely to vote. Right now, most states make such predictions by allowing each political party to select a slate of electors who agree to pledge support for that party’s presidential and vice-presidential candidates. In some places the identities of each party’s electors are determined somewhat in advance of the popular election. This time lag increases the prospect of elector faithlessness months later. More importantly, political parties can be big tents, and not all members of a party may strongly support the party’s ultimate nominee. For example, Elizabeth Warren Democrats may not all be keen on Joe Biden. So instead of allowing parties to select the electors, a state should allow the political campaigns of the general-election candidates to choose and offer slates of electors (who are presumably highly loyal to the respective candidates) on the eve of the general election. Then, based on the election results, the slate of electors associated with the winning campaign is the one that is selected as a matter of state law. Party loyalty is one thing; campaign and personal loyalty are far stronger, and the presidential candidates themselves are very unlikely to include as would-be electors persons who pose any real risk of faithlessness.

On top of this, even after electors are appointed, and prior to their formal votes for President and Vice President, states might be able to better police faithlessness. The essence of the argument in one the cases from last week (Baca) was that an elector’s vote, once cast, must be counted and cannot be undone. But what if a state had a law that said something like the following:

The electors of the President and Vice President selected by the voters of the state on the date prescribed by federal law as National Election Day shall convene at the seat of government on the day fixed by federal statute, at the hour of twelve o’clock noon of that day. The electors shall perform the duties required of them by the Constitution and laws of the United States by voting separately for President and Vice President. Before final votes are recorded, however, the electors shall take a straw poll, with all the electors voting by secret ballot for their preferred presidential and vice-presidential candidates. After the straw poll of the electors is conducted and its results are tallied and announced, this straw poll shall be deemed to be the final vote of the electors, provided a majority of electors does not object within 30 minutes. But if a majority of electors does object to deeming the straw poll results to be a final vote within 30 minutes, then that slate of electors shall be replaced by a substitute slate of electors provided by the campaign of the presidential candidate who garnered the highest number of popular votes in the state on National Election Day. The process then repeats, until a straw poll ripens into a final vote, the results of which shall then be reported to Congress.

This procedure, which respects the constitutional requirement that electors make use of secret ballots, would allow a majority of a state’s electors to effectively to block a faithless vote prior to its being cast. If one or a few electors voted in the straw poll for someone other than the candidate who won the state, then the entire group would be replaced (and it needs to be the entire group, because secrecy would prevent anyone from knowing which individuals were faithless.) And if so many electors were faithless that a majority of the slate were willing to let the straw poll ripen into a final vote, that would suggest that something drastic had changed in the weeks between the popular election and the meeting of the electors, in which case freeing the electors of their loyalty to the candidate whose campaign chose them makes good sense.

(Some might see tension between my proposal and the timelines set up in a federal statute passed in the nineteenth century to deal with disputes over the appointment of electors. But my proposed statute does not, strictly speaking, relate to disputes over appointment so much as removal and replacement of persons who were appointed prior to them formally voting. Moreover, the federal statute does not tell states what to do; it merely provides that any dispute resolutions that states reach in particular ways at particular times will be respected by Congress when it tallies electoral college votes. It has never been clear whether congressional vote talliers would be obligated to follow the federal statute anyway. And if my proposed solution satisfies Article II of the Constitution and the Twelfth Amendment, states needn’t even worry about a federal statutory “safe harbor.” Finally, if there is tension between my proposed solution (or similar solutions) to the faithless-elector problem and federal law, federal statutes should be rewritten. Indeed, Congress should tweak things anyway, by specifying a time period—e.g., from national election day until two weeks later—during which electors are technically appointed, rather than specifying a particular single date (as current law purports to) for the actual appointment. Such statutory revision, unlike constitutional amendment, is within the realm of the politically feasible.)

So the faithless-elector problem turns out not to have been a big problem in the first place, making the Court’s resolution of the cases before them relatively unimportant. (I note in this regard as well that only 15 or so states punish or replace faithless electors, suggesting that dozens of states need to turn to this potential problem to fix it even after the Court’s rulings).

More Good News: The Effect of Chiafolo and Baca on the National Popular Vote Movement

Even though the Court’s outcomes weren’t a big deal, the justices did, en route to those outcomes, make some observations and analytic points that could prove very helpful to the National Popular Vote (NPV) Interstate Compact movement, about which I have written a great deal (including, for example, here). As I have explained in many essays analyzing different nuances of this concept, the NPV plan—a version of which was seriously floated by a small number of people including me, my older brother Akhil Amar, and also (separately) Professor Robert Bennett over a decade-and-a-half ago—seeks to permit and encourage states to sign onto an agreement that would require each signatory state to cast its electoral college votes not for the candidate who necessarily garners the largest number of popular votes in that state, but for the candidate who wins the most popular votes nationally. This system, with enough states as signatories, would (assuming elector faithlessness were eliminated) mean that the winner of the presidential contest would be the person who had won the largest number of votes from individual voters nationwide. In that way, the plan would ensure that every voter—regardless of the state in which she lives—would have her vote count equally to that of every other voter in the country. Importantly, the agreement, by its own terms, would not go into effect until a sufficient number of states to comprise a majority of the electoral college—that is, states whose electoral college allotments collectively total 270 or more—ratify it.

Let me identify three ways Chiafalo and Baca help NPV.

First, Justice Kagan’s opinion for the Court amplified the breadth of the authority Article II confers on states in picking electors. She began by reiterating the Court’s prior observation that Article II, which empowers each state to “appoint” electors “in such Manner as the Legislature thereof may direct,” “’convey[s to states] the broadest power of determination’ over who becomes an elector.”

As noted above, putting aside whether the power to pick electors allows a state to control their votes, it certainly allows a state to predict their votes, insofar as the state can select people who believe in the values the state wants to promote. So if a state decides to pick electors who are dedicated to electing the national-popular-vote-winning presidential candidate, a state can certainly do that. Arguments that in doing so a state would be impermissibly delegating its sovereign power to people of other states are weak. If an individual voter can (as surely she can) rationally choose to vote for a candidate because the candidate stands the best chance of unifying the country and promoting equality of all voters, so too a state can make a policy decision that, at this point in history, the most attractive candidate is the one who can best unite the country, which a state could reasonably believe is the candidate with the most national support. Detractors have asked whether this means, for example, that a state could pick a slate of electors devoted to the candidate who is most popular in France. The answer is yes, but in the real world a state would do so only if American interests (or the interests of that state) were so dependent on French friendship that such an intelligible standard of French popularity were rational. If we lived in a world where French support were so important, there would be no problem with a state making such a substantive policy decision in its choice of whom to pick as its electors. When Winston Churchill took actions in 1940 and 1941 primarily because he thought they would make Franklin Roosevelt happy, he wasn’t delegating United Kingdom sovereignty to America; he was doing what was in his own country’s greatest interest—increasing the likelihood the United States would get involved on the side of the Allies in fighting Germany.

So a state can pick electors that have whichever political commitments the state thinks best. And it can (and this is the second point) make decisions about the elector-selection processes through whatever democratic means it wants. This point is reinforced (whether knowingly or not) by Justice Clarence Thomas’s concurring opinion in Chiafalo, where he observed (correctly and with support in Court precedent) that “[w]hen seeking to discern the meaning of a word in the Constitution, there is no better dictionary than the rest of the Constitution itself.” This approach to constitutional interpretation is sometimes known as “intratextualism (and much of Part One of this series employed intratextualism.) Justice Thomas invoked intratextualism in Chiafalo to show that the meaning of the word “manner” in Article II (concerning state power in presidential elections) could not bear the weight Justice Kagan placed on it because the word “manner” in Article I (concerning state power in congressional elections) means something different.

Importantly, Justice Thomas’s observation goes beyond the word “manner;” just as “manner” in Articles I and II should be construed to mean essentially the same things, so too should the word “legislature” in Articles I and II. (In Article I, state “legislatures” have the power to, in the first instance, prescribe the times, places, and manner of congressional elections, and in Article II, as noted above, state “legislatures” direct the manner of picking electors.) What does that have to do with NPV? Well, the Court has recently said (in the 2015 case upholding Arizona’s use of the initiative device to deal with partisan gerrymandering) that “legislature” (in Article I) includes not just elected officials, but also the people themselves, acting via direct democracy. And if that is true also for Article II (as Justice Thomas’s opinion in Chiafalo suggests and as I explain in depth here must be true), then states can adopt NPV using direct democracy, a device that will likely prove very helpful if the NPV movement is to get over the 270-electoral-vote hurdle. Direct democracy is good for NPV because the idea of NPV is favored by a majority of voters even in Red states where it is disfavored by Republican elected officials. So for NPV (which currently has on board states totaling 196 electoral votes) to break through in Red states and get over the 270-elector threshold, the movement might need to make use of direct democracy, which circumvents elected representatives who may be more focused on perceived party interests than first principles of national voter equality.

The third respect in which the NPV movement benefits from Chiafalo and Baca relates to the Court’s willingness to take these cases in the first place, and implicitly reject the idea that disputes over the operation of the electoral college are so-called “political questions” that only states and Congress can resolve. If and when NPV gets over the 270-electoral-vote hurdle (and when, as I have argued is required given the structure of the current NPV plan, Congress blesses the NPV compact and irons out some wrinkles), there will still be detractors and people who argue the plan is unconstitutional. As indicated above, I think the most frequently invoked constitutional challenges (assuming Congress approves the agreement) are meritless, but our system will need the Court to agree with me—and to do so prior to a presidential election—to avoid post-election melees. The Court’s willingness to weigh in and clarify things in Chiafalo and Baca is a good sign it appreciates it role here. (In that regard, the unanimity of these decisions suggests the justices do not want cases that could affect upcoming or recently held presidential elections decided by a Court divided on partisan lines, as was unfortunately true in the (in)famous Bush v. Gore.)

Some commenters worried, I thought needlessly even then, that the Tenth Circuit’s invalidation of Colorado’s attempt to replace electors after they voted in Baca would hurt the NPV plan. It turns out that the faithless elector disputes in the Supreme Court, given the things the justices said (apart from the result, which as I’ve shown wouldn’t have mattered much either way), were a win for NPV. And that is good news indeed.

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