Faithless no more! said the Supreme Court in Chiafalo v. Washington on Monday. The Court unanimously held that the Constitution allows a state to force its members of the Electoral College to vote according to that state’s popular vote. The case arose during the 2016 presidential election when three of Washington’s electors voted “faithlessly.” Democratic nominee Hillary Clinton won Washington’s 12 electoral votes, and each of Washington’s 12 electors had pledged to cast their votes for Clinton. But when the time came, three of the twelve violated their pledges, casting their votes for Colin Powell. Washington promptly removed the three electors from their posts and find each $1,000. The electors challenged their fines, claiming that the Constitution allows them to vote however they please. The Court rejected that claim, giving us all a bit more faith in our constitutional republic.
Case Background
Let’s begin with an old civics lesson. In the United States, we elect the president every four years via the Electoral College. It works like this: Suppose John (Republican) and Jane (Democrat) are running for president. On election day, voters in, say, Washington go the polls and submit their ballots. Once polling closes, Washington counts the ballots and determines whether a majority of Washington voters voted for John or Jane. Suppose Jane wins the Washington popular vote. Washington then instructs its 12 members of the Electoral College—the number of which is equal to the sum of its Congressional Representatives and two Senators—to submit their 12 Electoral College votes for Jane, the Democratic candidate. This process is the same in every other state (save for Maine and Nebraska). John or Jane must accrue an absolute majority of all possible Electoral College votes across the country—or 270—to win the election.
“Electors” are really just ordinary citizens. They’re nominated by a political party to vote for that party’s nominee and then appointed by each state if that party wins the state’s popular vote. So, in our hypothetical, the Democratic party would select 12 people to serve as Washington’s “electors.” Washington would appoint them, and each elector would then cast his/her vote for Jane. If instead the GOP won the popular vote in Washington, then it would get to choose its own 12 people to serve as electors. To ensure that no electors “defect” (or vote for the opposite party), several states require each elector to “pledge” to vote for their party’s candidate.
In the 2016 presidential election, the Democrats took Washington. All 12 of the state’s electors pledged to vote for Hillary Clinton, the Democratic nominee. But when it came time for the electors to cast their formal votes, three of them changed course. Realizing that Donald Trump was going to win the election, the three electors hatched a plan: They would vote “faithlessly” and cast their votes for a different Democrat (Colin Powell). At the same time, they would lobby electors from Republican states to do the same for other candidates in the Republican party. If enough Republican electors followed suit, neither Clinton nor Trump would accrue 270 votes, throwing the election to the U.S. House of Representatives.
Their plan failed. Not enough electors voted for different candidates, and Donald Trump won the election. To add insult to injury, Washington then fined each of those three electors $1,000 for breaking their pledges to vote for Clinton. (In case you’re wondering, no, the results of the election would not have changed had every elector voted according to their pledges.)
The electors challenged their fines in court, arguing that the Constitution allows them to vote for whomever they want. The case eventually made its way to the U.S. Supreme Court, which granted it and heard arguments in May. The Justices were tasked with deciding whether state laws requiring an elector to follow his/her voting pledge are unconstitutional. Washington and Colorado are not the only states with such laws—15 states have them (Arizona, California, Indiana, Michigan, Minnesota, Montana, Nebraska, Nevada, New Mexico, North Carolina, Oklahoma, South Carolina, and Utah, to round out the list).
On Monday, the Court unanimously answered “no”: the Constitution allows a state to require its electors to vote for the candidate they pledged to support. Justice Kagan wrote the Court’s opinion. Justice Thomas (joined in part by Justice Gorsuch) agreed in a concurring opinion.
Justice Kagan’s Majority Opinion
The History of the Electoral College
Kagan starts with a history lesson: the origins and evolution of the Electoral College. When does this history begin? Why, in 1787, of course! The scene is the Constitutional Convention. The Framers are locked in debates over the mode of electing the president. They do agree on one thing: they’re wary of a national popular vote. Fearful that the general populous would not possess the intelligence and judgment requisite to choose the person who will exercise considerable power as head of the Executive branch, the Framers instead leave the decision in the hands of a select few, chosen by the masses, who would possess such wisdom and “discernment” (Alexander Hamilton, Federalist No. 68). (Remember, we live in a republic, not a democracy. The people don’t make the country’s decisions; they choose the people who do.)
And thus the Electoral College was born. It is found in Article II, Section 1 of the Constitution. As the College was originally conceived, each elector would submit two votes. The presidential candidate that received the most votes would become president, and the runner-up would become vice president.
The College soon encountered a problem, however: political parties (also called “factions,” which are precisely what James Madison warned against in Federalist No. 10). In 1796, John Adams received the most Electoral votes and Thomas Jefferson finished second—but they belonged to opposing parties. Cue the discord in the Executive Branch. Four years later, Thomas Jefferson and Aaron Burr squared off—and tied. Every single elector cast their two votes for Jefferson and Burr. This threw the election to the House, which, after no less than 36 votes, chose Jefferson. Kagan humorously notes that Alexander Hamilton “secured his place on the Broadway stage” but “possibly in the cemetery too” by lobbying Federalists in the House to vote for Jefferson. Why the cemetery, you ask? Well, Burr would later kill Hamilton in an infamous duel; perhaps the legal process isn’t so bad for resolving disputes after all.
Calls for change were loud and clear. In 1804, Congress chewed up these concerns and spat out the Twelfth Amendment, giving us the Electoral College as we know it today.
On the Merits
Kagan then turns to the merits of the case. “The Constitution’s text and the Nation’s history both support allowing a State to enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President,” she holds.
Start with the Constitution’s text. “Article II, §1’s appointments power gives the States far-reaching authority over presidential electors,” Kagan explains. For example, states may appoint their electors “in such Manner as the Legislature thereof may direct” (Art. II §1, cl.2). That clause “‘convey[s] the broadest power of determination’ over who becomes an elector” (quoting McPherson v. Blacker (1892)). And incidental to the power of appointment must be the power to attach conditions on that appointment, Kagan argues. Now true, those conditions may differ in severity. For example, a simple requirement might be that an elector “live in the State or qualify as a regular voter during the relevant time period,” she offers. A stricter one, as we have seen, might require an elector to pledge to vote for his/her candidate’s nominee. Still stricter is a condition like Washington’s, a fine for an elector who reneges on his/her pledge. But no matter the nature of the conditions attached, “nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does,” Kagan points out. The Constitution is mere “barebones” about electors.
Now let’s turn to the country’s history. The nation’s “‘[l]ong settled and established practice’ may have ‘great weight in a proper interpretation of constitutional provisions,” Kagan writes (quoting The Pocket Veto Case (1929)). Here, that history belies the three electors’ defense. They claimed that electors have long voted by choice, not by direction. On the contrary, says Kagan: “Electors have only rarely exercised discretion in casting their ballots for President.” There have been 58 presidential elections in our nation’s history. Over 23,000 electors have voted. And how many of them voted faithlessly? 180. That’s less than one percent, which Kagan is quick to note. What’s more, 63 of those 180 faithless votes (35%) were cast in the 1872 election, in which the Democratic nominee (Horace Greeley) died shortly after election day. Removing 1872 from the equation, an average of just 2 electors vote faithlessly per election. So it’s no surprise that never has an elector’s “faithless vote . . . come close to affecting [the] outcome” of an election, Kagan says. History does not help the faithless electors’ case.
Early American jurists presciently came to this conclusion too. The great Justice Story wrote that “nothing is left to the electors but to register [their] votes, which are already pledged” (Commentaries on the Constitution, vol. 3 §1457 (1833)). Any “exercise of an independent judgment would be treated[] as a political usurpation, dishonourable to the individual, and a fraud upon his constituents” (id.). And Chief Justice Melville Fuller said that electors were selected “simply to register the will of the appointing power in respect of a particular candidate” (quoting McPherson).
“The Electors’ constitutional claim has neither text nor history on its side,” Kagan proclaims, and “Article II and the Twelfth Amendment give States broad power over electors, and give electors themselves no [substantive] rights.” Thus, Kagan concludes that states may direct their electors to honor their pledges, even by threat of legal penalty. “That direction,” writes Kagan “accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.”
What This Means
With Kagan’s opinion, the Court upheld the pledge-binding laws in those 15 states mentioned earlier. And more states are free to follow in their wake. Kagan recognized that the Constitution gives states the ultimate authority to decide how to appoint their electors. So, it’s up to each individual state’s legislature (and, by extension, that state’s citizens) to decide how to proceed. Some states may choose to adopt laws binding electors to their pledges; others may not.
In the long run, the Court’s decision disperses the scent of chaos. States are able to snuff out their electors’ independent judgment. There is thus a much lower possibility that a sufficient number of electors would break ranks and upend the expected results of a future presidential election. It also should be noted that Kagan’s decision has no bearing on the recent initiative in some states to abolish the Electoral College entirely.
Justice Thomas’ Concurrence
Justice Thomas, joined in part by Justice Gorsuch, penned a 12-page concurring opinion. In short, Thomas agrees that states may prohibit their electors from voting faithlessly, but his reasoning differs from that of Justice Kagan.
Kagan looked to the text of Article II and the Twelfth Amendment to support her conclusion. Thomas, however, thinks those provisions are “silent on States’ authority to bind electors in voting.” Instead, he looks to the Tenth Amendment, which says that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” So, in Thomas’ mind, since the Constitution nowhere speaks about the power to bind electors—and certainly does not give that power to the federal government—that power is “reserved to the states” by way of the Tenth Amendment, who are then free to exercise that power as they wish (just as Washington has done here).
Benchwarmers 