Putting Faith in Faithless Electors?
In May, the Supreme Court heard two cases on whether presidential electors can be legally required to follow their state’s popular vote. Colorado Department of State v. Baca and Chiafalo v. Washington concern electors in Colorado and Washington State, respectively, who broke state law by casting their ballots for someone other than 2016 Democratic Presidential Nominee Hillary Clinton, who won the popular vote in both states in the 2016 election. Such electors who are pledged to vote for a certain candidate by state law but vote otherwise are known as “faithless electors.” In Washington State, the faithless electors were fined $1,000 each, and in Colorado, an elector was removed from office and replaced. [1] [2]
Colorado v. Baca, which was appealed to the Supreme Court after a decision in the Tenth Circuit Court of Appeals, addresses the constitutionality of state laws that require presidential electors to follow the state’s popular vote. Specifically, this case asks if these laws are prohibited under Article II or the 12th Amendment of the Constitution. Chiafalo v. Washington, which was previously heard by the Washington Supreme Court, asks an additional question: whether punishment of an elector—such as Washington State’s fine—would violate the First Amendment. These questions are especially exigent as the next presidential election approaches in November. In recognition of the importance of this issue, 22 states filed an amicus curiae brief for Colorado v. Baca, asking the Supreme Court for clarification on the constitutionality of state laws which bind electors to the party’s nominee. [3]
In the Baca case, the Tenth Circuit Court of Appeals decided that states cannot compel electors to vote in accordance with the popular vote because the Constitution did not expressly allow states to remove electors and because the original intent of some Constitutional founders was to allow electors a choice in selecting the president. However, in Chiafalo v. Washington, the Washington Supreme Court came to the opposite conclusion: state laws could enforce electors’ choices using methods such as a fine.
In this article, we will first review the Constitutional guidelines which established the Electoral College. Then, we will consider the Supreme Court’s decision in Ray v. Blair (1952) which upholds the constitutionality of laws requiring electors to pledge their support for the state nominee but does not address the issue of enforcing an elector’s choice. This article will ultimately argue against the Tenth Circuit’s reasoning in Baca. The Supreme Court should not excessively value interpretations of the original intent of the framers of the Constitution. Rather, it should be noted the Constitution grants the states discretion over the selection of presidential electors and that the Supreme Court previously decided in Ray v. Blair that the states could place limitations, such as pledges, on electors’ choices. In line with this logic, the Supreme Court ought to find that state laws restricting electors’ choices are constitutional.
The roots of the Electoral College can be found in Article II, Section I of the U.S. Constitution, which was later amended in the 12th Amendment. Article II states that each state has the role of appointing electors “in such Manner as the Legislature thereof may direct.” [4] The 12th Amendment changed the method of voting for the president and vice president; initially, electors cast two votes for president and the runner-up became the vice president. Per the 12th Amendment, electors would “vote by ballot for President and Vice-President.” [5] These texts never specify the qualifications states can place upon elector selection and there is also no mention of whether electors can be dismissed based on their vote. As such, 29 states and the District of Columbia have laws requiring electors to vote for a pledged candidate that include mechanisms to penalize faithless electors, cancel their vote, or replace them. [6] The 2016 election is the first time many of these laws regarding vote invalidation or penalties have gone into effect. For instance, the dispute in Chiafalo v. Washington is the first time an elector has ever been fined for their vote. [7]
In 1952, the Supreme Court addressed a similar issue. In Ray v. Blair (1952), the Supreme Court ruled that it was constitutional for state political parties to require presidential electors to pledge to vote for the party’s nominee. The Court found that, due to Article II, states had the right to appoint electors in the manner they chose. Additionally, they ruled that the 12th Amendment did not bar the use of pledges. They found that the 12th Amendment would not bar an elector from voluntarily making a pledge, and that in practice electors are expected to support the party nominee; such a practice was considered a “long continued practical interpretation” of the Constitution’s rules on this matter. [8] However, Ray v. Blair makes no statement on the enforceability of this pledge, explicitly not resolving whether there is “an assumed constitutional freedom of the elector under the Constitution, Art. II, § 1, to vote as he may choose in the electoral college.” [9] This leaves the issue open to be decided in Colorado v. Baca and Chiafalo v. Washington.
On the other hand, The Tenth Circuit Court of Appeals heard the Baca case and held that states cannot compel electors to vote in accordance with the popular vote. [10] The Court argued that the Constitution did not specify that states had the power to remove delegates, and instead could only appoint them for a federal function. Furthermore, sources like the Federalist Papers revealed that the intent behind the creation of the Electoral College in Article II, Section 1 was for presidential electors to independently deliberate on their selection. These electors were to be chosen based on their ability to make a well-thought selection. [11] Additionally, the Tenth Circuit interpreted the use of words like “elector”, “vote”, and “ballot” as intending to allow choice for electors.
The Tenth Circuit acknowledged that, in cases which concern the powers of representatives, the courts should value the current government practice more than the actual text of the Constitution. Nevertheless, though it had been the long standing practice for states to implement a pledge and expect that electors would vote in accordance with the state popular vote, the Tenth Circuit found that this previous practice was not binding on their decision. [12]
The Washington Supreme Court’s decision in Chiafalo is at odds with the Tenth Circuit’s decision in Baca. The Washington Supreme Court upheld the $1,000 fines imposed on electors who had voted contrary to the popular vote, finding that the Constitution allows states to restrict electors’ vote choices. In Article II, Section I, the states were given broad authority to decide how to appoint electors, with no limits on possible requirements for electors. [13] The Washington Supreme Court disregarded the intent of the framers due to the fact that, in Ray v. Blair, the Supreme Court found that the Twelve Amendment did not grant electors absolute freedom of choice. In addition, the First Amendment was held to be inapplicable, as electors have no personal right to the role. [14]
The Supreme Court should not rely heavily on the original intent of the framers of the Constitution in its ruling. The Tenth Circuit decision in Baca was justified partially through texts written by the original legislators who contributed to Article II and the 12th Amendment, which express a desire for allowing electors to choose freely. These texts likely do not represent the views of all legislators, especially as this intent was not explicitly stated in the Constitution. It should also be noted that the Tenth Circuit’s argument relies too heavily on semantics. It is difficult to argue that the use of “elector”, “vote”, and “ballot” authoritatively indicates that the framers’ intended electors should have a free choice in selecting a president. An elector can still be called an “elector” even when there is one choice on the ballot. Thus, these words are not strongly indicative of intent for choice for electors.
Instead, current and historical government practices should be given more weight. Traditionally, electors were expected to vote for the party nominee and they rarely voted otherwise. Per the Supreme Court’s foundational reasoning in McCulloch v. Maryland (which was referenced in the Tenth Circuit’s decision), when “the respective powers of those who are equally the representatives of the people” are in question, the decision “ought to receive a considerable impression from [government] practice.” [15] In states where state law or political party policy requires electors to pledge or otherwise restrict their vote to the party’s nominee, this is the established government practice. Even in states with no such law, like South Dakota, “it simply has been understood that electors will honor their party’s and the electorate’s will.” [16]
Finally, the Constitution grants states control over the selection of presidential electors, and this state power should extend to the decisions of electors as well. Ray v. Blair allows states to impose pledges, which demonstrates that states can impose requirements which hinder choice for electors. The Tenth Circuit’s reading that states can appoint but not remove electors ignores the logical implications of allowing states to choose how they appoint electors. Should an appointed elector suddenly retract their pledge agreement, or otherwise fail to fulfill the state’s requirements, the state should have the authority to remove and replace this elector. Noah Feldman, a Harvard Law professor, expands upon this: should an elector break the a Constitutional rule on selecting presidential candidates—for instance, by violating the 12th Amendment to vote for a president and vice president from the same state, their vote should be invalidated and the elector should be replaced for breaking federal law. As electors are not federal agents, but state agents, the state should have this authority if electors violate state law as opposed to federal law. [17]
In these cases, the Supreme Court has the opportunity to settle an unclear issue on the role of delegates in the presidential primary. This decision would have a significant impact on the upcoming 2020 election and future presidential elections, and could shape state law. The Tenth Circuit’s decision in Baca, which ruled that states could not require electors to follow the popular vote, relies too much on interpreting original intent in the Constitution and ignores current practice and the logical implications of Ray v. Blair. In both Baca and Chiafalo, the Supreme Court should find that states have the Constitutional right to require their delegates to follow the popular vote of the state.
[1] Petition for Writ of Certiorari in Chiafalo v. Washington 1, 11 (2020)
[2] Respondents’ Brief in Support of Certiorari for Colorado v. Baca 1, 8 (2020)
[3] Brief for 22 States as Amicus Curiae, Colorado v. Baca (2020)
[4] U. S. Const. art. 2. sec. 1. cl. 2.
[5] U. S. Const. amend. XII
[6] “Faithless Elector State Laws.” FairVote, 2019. https://www.fairvote.org/faithless_elector_state_laws.
[7] Petition for Writ of Certiorari in Chiafalo v. Washington 1, 11 (2020)
[8] Ray v. Blair, 343 U.S. 214, 229 (1952)
[9] id at 230
[10] Baca v. Colorado Dept. of State, 935 F.3d 887, 902 (2019)
[11] id at 953
[12] id at 937
[13] Matter of Guerra, 441 P.3d 807, 814 (2019)
[14] id at 817
[15] qtd in Baca v. Colorado Dept. of State, 935 F.3d 887, 936 (2019)
[16] Brief for 22 States as Amicus Curiae, Colorado v. Baca (2020)
[17] Feldman, Noah. “Appeals Court Opens the Door to College Chaos.” Bloomberg.com. Bloomberg Opinion, August 29, 2019.