The Volokh Conspiracy
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Under the U.S. Constitution, presidential electors are free to vote as they choose, and cannot be controlled by the states. So argues an amicus brief that Rob Natelson and I filed in the 10th Circuit last week. The brief focuses on the original understanding of Article II, and of the Twelfth Amendment (1804), which modified the original system of electing the President and Vice-President. Fellow Volokh Conspirator David Post has also filed an amicus brief in the case; his brief discusses original meaning, but also details the history of presidential electors from the early 19th century to the present.
Factual background: In the 2016 presidential election, Hillary Clinton won the popular vote in the states of Colorado and Washington. In December, when the presidential electors assembled in each state, several Colorado and Washington electors attempted to cast their votes for someone other than Mrs. Clinton. The Colorado electors wanted to vote for John Kasich. They hoped that a sufficient number of electors in other states, including states where Donald Trump won the popular vote, might also vote for Kasich. If Trump did not receive 270 electoral votes, then the House of Representatives would decide the run-off among the three persons who had received the most electoral votes (Trump, Clinton, and Kasich).
In Colorado and Washington, the Secretaries of State threatened the electors with punishment under state law. The Secretaries were enforcing state statutes that require presidential electors in the state to vote for whomever wins the popular vote. Two of the Colorado electors who wanted to vote for someone other than Mrs. Clinton complied, and reluctantly voted for her. A third Colorado elector refused to back down. The Colorado Secretary of State removed the elector, and replaced him with an alternate, who then voted for Mrs. Clinton.
Case history: Harvard law professor Lawrence Lessig is leading a legal team representing the thwarted electors. The electors are dubbed "Hamilton electors," since Alexander Hamilton's Federalist no. 68 plainly stated that presidential electors would exercise discretion. Prof. Lessig and his clients seek a declaratory judgment that laws such as those in Colorado and Washington, which purport to eliminate the electors' discretion, violate the U.S. Constitution.
The case in Washington State is moving relatively slowly, as the Washington Supreme Court decides whether to grant certiorari, or to let the Washington Court of Appeals hear the case first.
In Colorado, the case was brought in federal district court. The district court ruled against the plaintiffs, and the case is now before the Tenth Circuit. Briefs for the Hamilton electors and their amici have been filed. The Colorado Attorney General will write a response brief, and after that, Prof. Lessig can file a reply brief. Oral argument might be in late 2018 or early 2019.
Now is a very good time for this constitutional litigation to take place, since the courts can focus on the legal issues. If the questions were postponed until litigation following some future presidential election, courts would have to make a decision while under immense partisan pressure from both sides–with both sides coercing the courts to decide according to politics, not law.
Argument: The United States Constitution permits, in fact requires, presidential electors to exercise their best discretion and judgment when casting their votes for President and Vice-President. The governing constitutional text is the Twelfth Amendment, whose relevant language is substantively identical to its predecessor in the original Constitution. According to the dictionaries and legal definitions of the time, an "elector" is a "chooser"–someone who exercises discretion to make a choice.
The Constitution gives the States the authority to determine how electors are appointed. For example, electors could be appointed by the state legislature. Today, all states have laws for electors to be chosen by the people. The power to appoint an elector does not include the separate power to control an elector after the appointment. Similarly, the President's power to appoint federal judges do not include the separate power to control how judges vote. The power of the people to elect the members of the U.S. House of Representatives does not include the separate power to control how those Representatives vote during their term of office.
When the Constitution means to give an appointer the separate power to control the appointee, the Constitution says so. For example, Article II is replete with clauses affirming the President's power to control appointees in the Executive Branch. (The Take Care Clause, the Opinion Clause, the Executive Vesting Clause, and the Commissioning Clause.)
The 1787 Constitutional Convention knowingly copied existing electoral models based on elector discretion. The model first was Maryland's system for electing the state senate. In Maryland, the people voted for the electors, and the electors in turn chose who the state senators would be.
The second model was especially important to James Wilson, a Scottish immigrant who was the first to propose an electoral college for choosing the President. In Scotland, members of the British House of Commons were not elected directly by the people (as they were in England). Instead, Scottish MPs were chosen by "commissioners." The commissioners in turn were elected by the people or by local governments.
The Convention delegates stated repeatedly that they wished to ensure that presidential election was kept free of state control. The Convention specifically and overwhelming rejected a proposal to allow the states to elect the president. During the constitutional ratification debate, advocates and opponents of ratification alike repeatedly stated that presidential electors would exercise full discretion.
There is not much serious dispute that the 1787 Constitution provided for free choice for electors. Hamilton's Federalist 68, as well as many other ratification documents, are very clear.
The Colorado federal district court, however, was persuaded by the argument that the Twelfth Amendment changed everything. Originally, the Constitution had provided that the electors would vote for two persons. Whoever came in first would be President, and the runner-up would be Vice-President. After the contentious tie in the 1800 presidential election between Thomas Jefferson and Aaron Burr (one of the pro-Republican South Carolina electors was supposed to not vote for Burr, but failed to follow through), the Constitution was amended. Under the Twelfth Amendment, each elector casts one ballot for President, and a separate ballot for Vice-President.
Although the Twelfth Amendment changed how electors would vote, the Amendment did not remove their discretion. Instead, the Twelfth Amendment copied nearly verbatim the 1787 language from Article II, which is generally agreed to recognize electors' discretion. Even more importantly, during the pro/con congressional debate on the proposed Twelfth Amendment, supporters and opponents expressly said that if the Twelfth Amendment became law, electors would have discretion.
Whether the constitutional system of the Electoral College is a good idea can be debated. People who oppose electors' discretion could argue for a constitutional amendment that would make winning the popular vote in each state worth a certain number of points. Whoever garners 270 points would win the election. Perhaps such an amendment would be an improvement. But that's a decision to be made under the amendment process of Article V.
It is also true that many state ballots these days are deceptive. For example, in Colorado, the names of the presidential nominees are on the ballot, but the names of the persons in the different slates of electors are not. So Colorado voters were tricked into thinking that they were voting for Hillary Clinton or Donald Trump, when in fact the voters who choosing between competing slates of electors who had said that they would cast their electoral votes for Clinton or Trump. And just like candidates for any office who make promises about how they will vote in office, the promises of the electors may be morally binding, but they are not legally binding.
Our amicus brief does not attempt to create a better system for electing the President. The brief simply presents the original public meaning of the 1787 Constitution and of the Twelfth Amendment. Our view is that the courts should adhere to the Constitution that was actually adopted.