Today’s unanimous decision on so-called “faithless electors” is less surprising than some might think. The Supreme Court earlier had settled the argument over whether states could require electors to follow the popular vote in presidential elections. Today, they ruled that punishing electors for refusing to comply passes constitutional muster as well:
States can require members of the Electoral College to cast their votes for the presidential candidates they had pledged to support, the Supreme Court unanimously ruled on Monday.
In curbing the independence of electors, the court limited one potential source of uncertainty in the 2020 presidential election.
That’s actually not quite what was at stake in today’s decision on Chiafalo et al v Washington, at least not technically. Nearly seventy years ago, the Supreme Court held in Ray v Blair that states could require pledges from electors to vote in accordance with the popular votes within their states, ruling that electors were under the jurisdiction of states and not the federal government. Ray didn’t address whether states could impose penalties on electors for faithlessness, however, which is the issue at hand in Chiafalo.
Justice Elena Kagan wrote for the majority and makes reference to Ray at the very beginning of her governing opinion. This decision simply closes the loop from 1952:
Three Washington electors, Peter Chiafalo, Levi Guerra, and Esther John (the Electors), violated their pledges to support Hillary Clinton in the 2016 presidential election. In response, the State fined the Electors $1,000 apiece for breaking their pledges to support the same candidate its voters had. The Electors challenged their fines in state court, arguing that the Constitution gives members of the Electoral College the right to vote however they please. The Washington Superior Court rejected that claim, and the State Supreme Court affirmed, relying on Ray v. Blair, 343 U. S. 214. In Ray, this Court upheld a pledge requirement—though one without a penalty to back it up. Ray held that pledges were consistent with the Constitution’s text and our Nation’s history, id., at 225–230; but it reserved the question whether a State can enforce that requirement through legal sanctions.
Held: A State may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President. Pp. 8–18.
Interestingly, Kagan takes a textual approach to the question. Counsel for the electors argued that the intent of the founders was to allow the Electoral College the discretion needed to choose the best candidate for president. Perhaps, Kagan wrote, but if that’s what they wanted, they should have written it into the constitution:
Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does. Article II includes only the instruction to each State to appoint electors, and the Twelfth Amendment only sets out the electors’ voting procedures. And while two contemporaneous State Constitutions incorporated language calling for the exercise of elector discretion, no language of that kind made it into the Federal Constitution. Contrary to the Electors’ argument, Article II’s use of the term “electors” and the Twelfth Amendment’s requirement that the electors “vote,” and that they do so “by ballot,” do not establish that electors must have discretion. The Electors and their amici object that the Framers using those words expected the Electors’ votes to reflect their own judgments. But even assuming that outlook was widely shared, it would not be enough. Whether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page.
True enough! Now … let’s do abortion and its “emanations” and “penumbras.” This seems like a great opportunity to revisit Roe based on this same explanation, no?
Kagan also points out that the decision in Ray showed that Electoral College practice was reliability rather than discretion, even in the earliest days. The only open question was that of punishment for faithlessness. Can states impose punishment for actions taken in the federal environs of the Electoral College? A power to appoint and to proscribe necessarily carries an authority to enforce, Kagan wrote:
The Electors’ constitutional claim has neither text nor history on its side. Article II and the Twelfth Amendment give States broad power over electors, and give electors themselves no rights. Early in our history, States decided to tie electors to the presidential choices of others, whether legislatures or citizens. Except that legislatures no longer play a role, that practice has continued for more than 200 years. Among the devices States have long used to achieve their object are pledge laws, designed to impress on electors their role as agents of others. A State follows in the same tradition if, like Washington, it chooses to sanction an elector for breaching his promise. Then too, the State instructs its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.
Interestingly, Justice Clarence Thomas dissents from this reasoning, even if he supports the final outcome:
To understand the Court’s error, a brief summary of its theory is necessary. According to the Court, Article II, §1, grants States “the power to appoint” Presidential electors “in such Manner as the Legislature thereof may direct.” Ante, at 9. That “power to appoint an elector,” the Court states, “includes power to condition his appointment.” Ibid. The power to condition appointment in turn allows the State to insist that an “elector pledge to cast his Electoral College ballot for his party’s presidential nominee.” Ante, at 9–10. And finally, “the State’s appointment power . . . enables the enforcement of a pledge.” Ante, at 10. The Court’s theory is entirely premised on the State exercising a power to appoint. …
But not all States attempt to bind electors’ votes through the appointment process. Some States simply impose a legal duty that has no connection to elector appointment. See ante, at 5. For example, New Mexico imposes a legal duty on its electors: “All presidential electors shall cast their ballots in the electoral college for the candidates of the political party which nominated them as presidential electors.” N. M. Stat. Ann. §1–15–9(A) (Supp. 2011). And “[a]ny presidential elector who casts his ballot in violation of [this duty] is guilty of a fourth degree felony.” §1–15–9(B). California has a similar system. It first imposes a legal duty on electors to vote for the nominated candidates of the political party they represent if those candidates are alive. Cal. Elec. Code Ann. §6906 (West 2019). It then imposes a punishment on “[e]very person charged with the performance of any duty under any law of this state relating to elections, who willfully neglects or refuses to perform it.” §18002.3 These laws penalize electors for their faithless votes. But they do not attempt to regulate the votes of electors through the appointment process. In fact, these laws have nothing to do with elector appointment. …
In short, the Constitution does not speak to States’ power to require Presidential electors to vote for the candidates chosen by the people. The Court’s attempt to ground such a power in Article II’s text falls short. Rather than contort the language of both Article II and the state statute, I would acknowledge that the Constitution simply says nothing about the States’ power in this regard.
Rather, Thomas writes (with Justice Neil Gorsuch’s concurrence), the answer to the conundrum lies with the Constitution itself. Nothing within it forbids punishing faithless electors, and that’s where the matter should have ended in the first place:
That is, powers related to electors reside with States to the extent that the Constitution does not remove or restrict that power. Thus, to invalidate a state law, there must be “something in the Federal Constitution that deprives the [States of] the power to enact such [a] measur[e].” U. S. Term Limits, 514 U. S., at 850 (THOMAS, J., dissenting).
As the Court recognizes, nothing in the Constitution prevents States from requiring Presidential electors to vote for the candidate chosen by the people. Petitioners ask us to infer a constitutional right to elector independence by interpreting the terms “appoint,” “Electors,” “vote,” and “by Ballot” to align with the Framers’ expectations of discretion in elector voting. But the Framers’ expectations aid our interpretive inquiry only to the extent that they provide evidence of the original public meaning of the Constitution. They cannot be used to change that meaning. As the Court explains, the plain meaning of the terms relied on by petitioners do not appear to “connote independent choice.” Ante, at 11. Thus, “the original expectation[s]” of the Framers as to elector discretion provide “no reason for holding that the power confided to the States by the Constitution has ceased to exist.” McPherson, 146 U. S., at 36; see also ante, at 12– 13.
This should have been an easy call, in other words, but the court made it harder than necessary. Perhaps this is why this opinion didn’t get issued until the end of the term; one might have expected a unanimous outcome to get issued ahead of the final couple of days.
Finally, there’s some reason to forgive any coverage that misses the technical distinction of today’s decision in light of Ray v Blair. The faithless elector question might have been settled in 1952, but without punishment, electors continued to try it. In practice, at least, the Supreme Court failed then to fully settle the issue. Now that states can apply disincentives to faithlessness, we can likely expect much less of it in the future.