State May Punish "Faithless Electors," Wash. Sup. Ct. Rules

The court upheld a $1000 fine imposed by state law on Presidential electors who refused to vote as the voters instructed.

|The Volokh Conspiracy |

Today's decision (In the Matter of Guerra) relies heavily on the U.S. Supreme Court decision in Ray v. Blair (1952), which upheld a state requirement that electors pledge to support the party National Convention's nominees: "Where a state authorizes a party to choose its nominees for elector in a party primary and to fix the qualifications for the candidates, we see no federal constitutional objection to the requirement of this pledge." The Washington court summarized:

Article II, section 1 of the United States Constitution grants to the states plenary power to direct the manner and mode of appointment of electors to the Electoral College. We hold that the fine imposed pursuant to RCW 29A.56.340 falls within that authority. We further hold nothing under article II, section 1 or the Twelfth Amendment to the Constitution grants to the electors absolute discretion in casting their votes and the fine does not interfere with a federal function. Finally, an elector acts under the authority of the State, and no First Amendment right is violated when a state imposes a fine based on an elector's violation of his pledge.

Justice Gonzalez dissented:

The State's authority to penalize its electors is an issue of first impression. Ray v. Blair concerns only the broad authority to appoint electors. The Court addressed the constitutionality of requiring electors to make a pledge but did not address the elector's discretion. In dissent, Justice Robert H. Jackson raised concerns about an elector's freedom to exercise independent judgment as originally intended. I share his concerns. He opined, "No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the [individuals] best qualified for the Nation's highest offices."

There is a meaningful difference between the power to appoint and the power to control. "A power not expressly listed [in the Constitution] is granted only if incidental to an enumerated power." The Constitution provides the State only with the power to appoint, leaving the electors with the discretion to vote their conscience. See U.S. Const. art. II, § 1. Therefore, the State cannot impose a civil penalty on electors who do not vote for the candidates nominated by their party.

 

NEXT: New Hampshire Is One Step Closer To Abolishing the Death Penalty

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Seems to non-lawyer me that it ought to be obvious that electors have discretion; otherwise, why go to all the trouble to insert them into the middle if they have no free will? Why not just apportion the votes directly and skip the whole extra step?

    I recall there is some legal theory that says if a legislature used some expression or term sometimes, but not other times, that the difference must be construed as intentional, not a mere goof that courts are free to “correct”.

    1. “Seems to non-lawyer me that it ought to be obvious that electors have discretion; otherwise, why go to all the trouble to insert them into the middle if they have no free will?”

      One reason to have electors is to avoid having to keep holding elections for the voters to select a winner, if none of the original candidates secures a win. Suppose you have a Presidential election in which three candidates each earns one third of the electoral votes. You COULD call the election a wash, and schedule another one and ask the people if anyone wants to change their mind or suggest another (compromise) candidate, but that’s a big endeavor, and takes time and money and effort. It’s much easier to get the 530-ish electors back together to do that than to ask the entire country (plus, the electors are gathered together for the purpose.)

      This doesn’t come up much in our current setup with two major parties… all the elections between two candidates produced a winner with enough electoral votes to win outright on the first ballot. There have been some third-party candidates who got electoral votes, but not enough to deny a clear victory.

      Yes, the system does give us “winners” who got less than half the votes cast. But the system was designed to be flexible enough to handle more than two candidates. (Remember, the Constitution was written for a country that took months to traverse by horseback, not one that you can catch a jet and see a different ocean the same day.)

      1. IOW, the electors have discretion only when they would otherwise be deadlocked?

        That must be in the penumbras of the Constitution.

        If the framers had meant that, they would have written it. There’s a lot of vagueness in a lot of the Constitution, but I don’t recall any other sections so specifically vague about such a specific twist.

        1. “If the framers had meant that, they would have written it”

          That’s an interesting theory.

      2. What are you talking about? If electors are bound they can’t “change” a vote. And the Constitution takes it away from electors if there is no majority and gives it to the House (President) and Senate (Vice President). They don’t gather electors again and have another vote.

        1. ” If electors are bound they can’t ‘change’ a vote.”

          If.

      3. Except that’s not the way the EC works. Electors only cast one vote. Then it goes to the House.

        1. I took him to imply that ifffff the electors think they will be deadlocked, then they have permission to change their vote. Either way makes no sense.

        2. “Except that’s not the way the EC works.”

          If only someone had pointed out that the two-party solution we landed on rendered all this potential flexibility moot. If only.

        3. Actually, it gets a bit more interesting here. It does go to the House. But the House is restricted to voting for the 3 candidates who obtained the most electoral votes.

          So, not only can the electors change their vote, causing a deadlock, they can also change the choices the House has.

    2. There can be a middle position where the electors are normally bound but are released under some circumstances.

      In decreasing order of urgency:

      1. The nominee dies in the period between when the ballots are printed for the popular vote and when the electoral votes are cast.
      2. The nominee is determined to be ineligible to hold office.
      3. The nominee releases his/her electors from their pledge (something a nominee headed for third or fourth in EVs might want to do).
      4. The nominee didn’t release the electors but is clearly not going to win a majority of EVs anyway.
      5. The nominee tweets stuff revealing himself to be unfit for office.

      OK maybe the 5th one is marginal.

      1. On the one hand, the electors may be seen as representational, like other parts of the American government. Electors are chosen to represent the voters of the state(s).

        On the other hand, maybe it’s more like contract (or at least, detrimental reliance)… I voted for X elector because he SAID he’d vote for Y candidate, then he broke faith and voted for candidate Z instead. I never would have voted for X elector if they’d said they’d vote for Z up front.

        1. If you go with the representation model, then “faithless” is could be exactly what I want from my rep. If by some miracle Johnson had won my state in 2016, and his electors held the balance in the Electoral College, then I’d want them them to bargain their votes for whatever concessions they could obtain.

      2. #2, How is this happening at the point the electors are supposed to be voting. If someone thinks one of the candidates is ineligible, that is a challenge that should be brought before the primaries/national conventions.

        1. It’s a hypothetical. So, hypothetically, the evidence didn’t surface until after the election. Look, sometimes a guy dies between the time the ballot is printed and the election; then still wins the election. Take the hypo as it is and work within it.

  2. If electors/officials are “faithless” and should be punished for ignoring the voters in their state in general, does that mean we should also punish electors/officials who ignore the voters in their state because of politically motivated ‘popular vote’ compacts?

    1. That is literally the opposite of the logic of this judgment.

      1. Not necessarily. Remember that the ‘popular vote’ compacts include a commitment to give all the electors to whichever candidate got a majority – or in some states, even only a plurality. In a split state, that (arguably) disenfranchises all the people who didn’t vote for the winner.

        1. Correct me if I’m wrong but the implication of the Compact is that all votes for a state would go to whoever won a plurality even if every single person in the state voted for someone else. If that isn’t disenfranchisement of a state what is?

          1. There is no right to vote for President. That is simply the mechanism each state uses. But the Constitution doesn’t require an election to choose electors.

            1. Correct. The Constitution says the Electors will be chosen in a manner chosen by the state legislatures.

              If the state legislature decides their Electoral votes go to the national popular vote winner instead of who won the vote in their state it’s constitutional.

              1. I’m talking about what should be done according to the moral precepts behind what happened here not what should be done if the Constitution was the be all end all, in which case the Compact wouldn’t exist in the first place.

                1. It’s a pretty carefully tuned moral precept that holds state-by-state majorities are great but national majorities are not.

                  I do think the EC is good policy (despite it currently hurting my side electorally), but making a moral stand on it seems like motivated reasoning.

                  1. Because the Constitution forms an alliance of States. United States. There has never bee a National Election. A national vote did not ratify the Constitution. A national popular vote does not amend the Constitution. A National popular vote has never been taken for any reason. The Bill of Rights protects citizens from the power of a Federal Govt, AND it protect the STATES, from the power of the Federal Govt. States are sovereign. Everything about the establishment, and operation of the Federal Govt is centered on the PEOPLE, or THE STATE. To abandon a cornerstone of our form of governance in favor of rule by the tyranny of the national majority, ignores protections as laid out in our founding principles.

                    1. “Because the Constitution forms an alliance of States.”

                      The alliance of the States existed before the Constitution was ratified, drafted, or even conceived. The Founders tried a government with a weak central government, and it failed only a little more than a decade in. Then they had to make the central government stronger AGAIN 75 years after that.

                      In the original formulation of the United States, the states were charged with protecting the rights of citizens from encroachment by the federal government. This didn’t work. So it was flipped, and the federal government was charged with protecting the rights of citizens from encroachment by the states.

                    2. This is just sophistry.

                      First, Constitutional does not mean moral. Show your work, don’t just worship the Founders.

                      Second, you are not being originalist. The EC as it operates now is certainly not part of any Founder’s vision. Outcome-oriented choice of reasoning. Your argument intentionalist at best.

                      And even then, you’re saying because the Constitution apportions power by the states sometimes, it does so here. That is not in evidence.
                      The Constitution has places in it for the nation, the people, states, districts. And then it was amended and power was shifted away from the states.

                      The EC as constituted isn’t some load-bearing part of any system intentionally created or not to maintain our republic.

                      Again, I think it is good policy. And you make a fine policy argument if I waive away your grandstanding and see an argument about state’s particular character beyond the sum of their parts. But your soapbox is tuned very much too high.

                    3. If “States are sovereign” they can pick their own electoral votes however they want. And if they’d prefer a national vote, who are you to tell them otherwise? If STATES are so important, it is “a cornerstone of our form of governance” that they be allowed to set the rules.

              2. “If the state legislature decides their Electoral votes go to the national popular vote winner instead of who won the vote in their state it’s constitutional.”

                Article I, Section 10 of the United States Constitution provides that “No State shall, without the Consent of Congress… enter into any Agreement or Compact with another State.”

                1. There’s no consideration, no negotiation. This isn’t a compact it’s all unilateral.

                  Unless you’re going to find something in the purpose of the Constitution. Or maybe a penumbra?

                  1. If they CALL IT a “Compact”, it must be a compact, right?

                    This is for all the right-wingers who want to dissassociate with the Nazis because they have “Socialists” in their name. Those darn socialist lefty Nazis!

                  2. We have to look at the substance, not mere form.

                    Each “unilateral” law only become effective when a sufficient number of other states pass the same “unilateral” law.

                    Its a mutual agreement by adherence, hence it needs Congressional approval. Think of it like a penalty that would be unconstitutional except it is really a tax so ok.

                    1. Its a mutual agreement by adherence.

                      That’s really a reach, Bob. That’s not how that works at all.

                      It’s not a stealth law if it’s something states have been given discretion to do anyhow.

                    2. The discretion is limited by other sections of the Constitution.

                      I assume that you believe it unconstitutional for a state to require all electors to be Christians.

                    3. Yeah – this isn’t requiring all electors to be Christians. There’s no discretion to do that.

                      If it is undisputed that individual states can on their own choose to go with the national popular vote, they can do so contingently.

                      This isn’t anything like what that clause speaks to. Not formally, not functionally, not as to it’s purpose, nor to it’s text. You’re becoming like the right-wing caricature of the liberal activist judge, wherein the policy comes first and the legal rationalization comes second.

                    4. “There’s no discretion to do that. ”

                      Nor is there to violate the Compact clause.

                      “If it is undisputed that individual states can on their own choose to go with the national popular vote, they can do so contingently.”

                      If the contingency is an agreement by another state to do the same, it is a Compact requiring Congressional approval.

                      Ever hear of “implied contract”?

                    5. If the contingency is an agreement by another state to do the same, it is a Compact requiring Congressional approval.

                      That’s not a compact. You’re just making that up.

                    6. “Nor is there to violate the Compact clause.”

                      Nor is it a violation for a state to say “we’re going to do this, if X happens”.

                      “Ever hear of “implied contract”?”

                      Sure. That’s something different from what you’re talking about, but yeah, I’ve heard of it.

                      As pointed out upstream… you can volunteer to do something, even promise to do it, but that doesn’t make it a contract. Contracts are ENFORCEABLE voluntary agreements to do something.

                2. What difference would it make? If the Court declared the agreement unconstitutional, that wouldn’t change the result. Article I, Section 10 may make it impossible for participants to enforce the agreement, but SCOTUS can’t tell any individual state how to assign its electoral votes. If they all voluntarily comply with the compact, the results would stand.

                  1. If the “winner” controlled the new Congress, nothing except the specter of illegitimacy.

                    A Congress controlled by the opposing party could however approve the “losing” candidates slate on the basis of the illegality of the act or just not count the electoral votes so as to throw it into the House.

                    1. Jesus, Bob. What do you think that would do for the legitimacy of the election?

                    2. Oh no the specter of illegitimacy according to Bob from Ohio, how will the republic survive?

                      If Congress is determined to ignore its obligation to count electoral votes, it doesn’t need to wait for the NPVIC to take over.

                    3. Just responding to the proposition posed by NToJ.

                      If the Supreme Court finds that the state laws violate the Compact Clause and states just ignore it, then expect the opposition to ignore those states.

                    4. @Bob from Ohio,

                      If no one is seeking to enforce the compact, how does it get to SCOTUS in the first place? Even if the compact is constitutionally unenforceable, states are still entitled to pick their electors in whatever manner they see fit. If all the states voluntarily comply with the agreement, there’s nothing for a plaintiff to challenge. Even if Nevada and California cannot agree to pick electors based on the national popular vote, Nevada can decide on electors on the basis of a national popular vote, as can California.

                      But let’s assume SCOTUS declares some state’s law unconstitutional. Ok. That state still proceeds with putting up electors who vote a particular way. What then? You say the “opposition” won’t count their votes. On what basis?

                    5. “If the Supreme Court finds that the state laws violate the Compact Clause”

                      Who, exactly, has standing to sue over that?

  3. How will this WASC ruling affect the dumb, stupid, and ridiculous “National Popular Vote” law that the Governor just signed?

    1. It won’t

    2. Most voters favor abolishing the electoral college. So not so dumb. stupid, or ridiculous.

      1. regexp
        1. Just b/c most voters support X does not mean that X is, in fact, not dumb, stupid, and/or ridiculous. Until a decade ago, most voters would not have supported gay marriage, decriminalization of pot, etc.–all stupid positions (IMO) held by a healthy majority of voters.
        2. In this particular case, I do favor doing away with the electoral college, either directly via constitutional amendment or indirectly via some sort of national popular vote compact passed by a sufficient number of states. Can’t see it happening within the next many decades…hard to imagine enough smaller states voluntarily doing away with a lot of their influence.

        1. “Just b/c most voters support X does not mean that X is, in fact, not dumb, stupid, and/or ridiculous.”

          It’s a good indicator.

          “Can’t see it happening within the next many decades…hard to imagine enough smaller states voluntarily doing away with a lot of their influence.”

          Iowa and New Hampshire will cling to the current system. Who else do you see in a similar status? As it is now, candidates routinely ignore most of the states, except for hitting up the donor class for cash, and sometimes not even doing THAT in person.
          States that have a fairly obvious majority of partisans of one stripe or the other get skipped, and states with less than 10 electors do, too, unless the candidate happens to be passing through on the way to a big swing state.

          Will changing to what amounts to a national popular vote make candidates stop in Wyoming or Delaware, and focus on issues specific to those states? Probably not. But I don’t see how they get even more ignored…

          1. It is easy to argue Trump could have gotten a lot more of the popular vote if he had spent more time in CA and NY instead of WI, MI, and the other medium/small states where he won by a cat’s whisper. By the same token arm chair QBs point out Hillary screwed the pooch by not ever going to WI thinking it would be an easy win.

            Trump has claimed his campaign was based on winning the EC, not the popular vote and before the election his position was for a popular vote winner, not an EC winner.

            Bottom line is the US had to grant more power to the smaller states than their population justified in order to get them to join the US. We are stuck with that now unless you want to risk states leaving. Imaging LA leaving and every ship going down the Mississippi having to pay homage to the state government there; or Texas and Montana leaving and oil production taking a hit.

            I don’t see the EC going away.

            1. “Trump has claimed his campaign was based on winning the EC, not the popular vote and before the election his position was for a popular vote winner, not an EC winner.”

              Trump has ALSO claimed that he WAS the popular winner, once you delete enough “illegal votes” to make him the popular winner. He’s known to be a somewhat unreliable source for facts.

              “We are stuck with that now unless you want to risk states leaving.”

              Didn’t we settle that issue in 1865?

            2. “We are stuck with that now unless you want to risk states leaving.”

              Nobody is going to leave because the electoral college is abolished. It’s a popular position. Certainly not so unpopular that any state is going to get existential over it. And since this is allegedly a power play between large and small states, why didn’t you frame it in terms of CA and NY leaving if the EC isn’t abolished?

              1. “CA and NY leaving if the EC isn’t abolished?”

                We can hope.

                1. Good luck with that.

      2. Most of those “voters” reside on the coast and are ass-mad when they don’t get everything they want, when they want it.

        1. As opposed to the non-coastal “voters” who don’t reside on the coast, but are ass-mad when they don’t get everything they want, when they want it?

      3. would you like it if china and india suddenly got to outvote everybody in the WTO and all other intergovermental agencies and eventually whatever world governing body would follow and decide what happens in america because they have the most people? Sounds pretty dumb to me but apparently a lot of people are for this going by the underlying logic they support.

        1. AA making the elitist argument against the popular vote, wherein Pennsylvania and Ohio are the elites…for some reason.

          There are arguments for the EC. This ain’t it.

          1. Don’t see it as elitist at all. Having to worry about your political support in a bunch of states means you can’t swing too hard in any direction. Otherwise we’d see Democratic candidates only supporting the big city Democrat policies and Republicans only supporting Southern policies. As it is, Trump has to try and keep Rust Belt Democrats while not pissing off the Republican core too much, just as Obama couldn’t just appeal to the activist left and had to capture moderate Democrats.

            1. It’s not a bunch of states though. It’s a very small subset curated more by luck than anything else – an aristocracy by chance. Those states are not skeptical moderates; have never been since I’ve been politically conscious.

              We see the candidates spend all their time in like 5 states now (Pennsylvania, Florida, Wisconsin, Michigan, Ohio), hence the supremacy of agricultural subsidies and ethanol and such silliness. Your scenario is no worse than what we have now.

              I think it is good policy to respect the identities each state has separate from their population. But don’t pretend that switching to the popular vote would make Presidential electoral strategy any more degenerate than it is now.

              1. “We see the candidates spend all their time in like 5 states now (…Wisconsin…), ”

                Not all candidates!

                1. Disappointed because the Socialist candidate didn’t come to your town?

                2. 😀

                  Shoulda seen that one coming!

              2. Sarcastro : We see the candidates spend all their time in like 5 states now (Pennsylvania, Florida, Wisconsin, Michigan, Ohio)

                You’ve already forgotten about Iowa, North Carolina, Colorado, New Hampshire, Arizona, Georgia, Minnesota, Nevada, Maine (where Trump spent some time trying to scrabble up the 2nd district and finished up not far from winning the state itself) You’ve also forgotten that amidst all the Florida excitement, Bush 43 unexpectedly snatched West Virginia which proved critical.

                California was hotly contested not long ago. Texas in hoving into view for the Dems, while Ohio is probably disappearing over the horizon. New Hampshire, Virginia and Colorado were safe red and Missouri was a swing state, very recently.

                Swing states change around.

                1. “Swing states change around.”

                  But not the fact that candidates tend to ignore the 40+ non-swing states unless they’re showing up to ask for money to spend in the swing states, and sometimes they don’t even do THAT in person.

          2. I agree with gormadoc – that argument isn’t about elitism. It’s about protecting minorities. In AA’s example, the minorities are all the people who live anywhere besides China and India. In the Electoral College, the minorities are the residents of the smaller states.

            1. You need to explain why a given minority subset deserves privileged treatment. Otherwise it’s just an aristocracy.

              Saying a minority group needs it otherwise it’ll get drowned out by the majority is insufficient to distinguish a given minority group from literally any other way you might slice the population.

              1. In an ideal world God/Darwin would sort people out into accurate categories and suspend them in space and an political candidate would go out in front of them laying out a platform which caters to a reasonably wide set. But without that we have the states which is imperfect but better than selecting something based entirely on what Los Angeles/NYC want.

                1. If you’re going to go by the ‘persecuted by the coasts’ sentiment, you need to look at the current status quo and explain why giving those five states similar power but without the populational imprimatur is better.

                  I’m not saying you can’t, but you will need to show your work beyond yelling about the coastal elites.

                  1. Coastal megalopolises do have a lot more power than ‘swing states’. Maybe not in every way the megalopolises want but if Pelosi wanted to do a one on one swap with Trump of Ohio for California I’m sure he’d accept. In some ways they have even more power than they should (ie by buffing their numbers with massive infusions of illegals), inbuilt biases, self-reinforcing network effects in innumerable areas including economy, infrastructure, grants etc (whats called privilege in other contexts) and would have even more influence if they stopped rubber stamping every Dem that came their way.

                    1. You started well, but you veered off onto ‘the coasts have bad values and shouldn’t get a say’ territory pretty quickly. Do you think Ohio has more merit than California somehow?

                      I’ll buy the argument that we already have a lot of policies that favor high population and that the EC acts as a counterbalance. But it’s rather revealing your hand to say that coastal cities deserve less representation because they’re just structurally more close-minded than the rust belt.

                      The massive infusion of illegals bit is some sad nativist paranoia, but I’ll leave it lie as off topic for now.

                2. ” without that we have the states which is imperfect but better than selecting something based entirely on what Los Angeles/NYC want.”

                  How is selecting what Podunk wants inherently selecting what Los Angeles/NYC want? Because you live in Podunk?

                  1. editing error.

                    How is selecting what Podunk wants inherently better than selecting what Los Angeles/NYC want? Because you live in Podunk?

            2. The population of different states presumably makes a choice to live where they do. If you switch to a new election system that disadvantages, say, Rhode Island, what stops Rhode Islanders from pulling up stakes and becoming, say, New Yorkers or Virginians? It’s certainly unfortunate that electoral politics might influence or even force such movement, but economic opportunity already has much the same effect.

              In 1789, we needed to convince the small states to join, and that meant that we had to make assurances that they wouldn’t get swamped by the bigger, more powerful states they were joining as equals. But they’re in, and the Big Unpleasantness settled the question of whether states could decide to leave. The slave states got assurances about the slave economy before they joined, and right after the Big Unpleasantness, the slave economy went away, as they feared it would.

  4. If you want to broaden the Electoral process, nationalize what Nebraska does.
    Each house district is one electoral vote and each state is worth two.

    1. It’s bad enough gerrymandering affects congressman, now you want to affect the Presidency too?

      1. I concur. the fighting over gerrymandered districts would be intense.
        I have a simple solution to reduce gerrymandering:
        Put the minority party in each state in charge of drawing the district maps, with the proviso that existing Reps would still be the same district as redrawn.

    2. To avoid the danger of gerrymandering and the resulting lawsuits, proportional distribution of electoral votes would be better. The candidates who reached threshold percentage of a State’s popular vote (e.g., 15%) would receive a proportional number of electoral votes.

      1. Democrats would never accept that because it would instantly neuter the electoral power that California, New York, and Illinois possess by distributing electoral votes to Republicans. It would reveal once and for all that a lot of these states are dominated politically by a few urban megapoles that piss on the rest of the state.

        1. “Democrats would never accept that because it would instantly neuter the electoral power that California, New York, and Illinois possess by distributing electoral votes to Republicans.”

          It’s not one-sided. The big cities in blue states can’t capture the electoral votes of the rural parts of the state any more, but the rural areas in red states can’t swamp the blue voters in the cities of those states, either.

          The real problem is that since voters like to go 48% to one party, 46% to another, and 6% split among fringe candidates, protest votes, and the like, it’s more likely that the Electoral College fails to produce a majority winner, and elections go to the House. You think gerrymandering is bad now, just WAIT until the Presidential elections depend on who owns the House.

      2. ” The candidates who reached threshold percentage of a State’s popular vote (e.g., 15%) would receive a proportional number of electoral votes.”

        How does that work in Wyoming or Alaska, with their 3 electoral votes each? Would getting 16.8% of the popular vote get you an elector?

        1. Depending on how the rounding rules are set by the state and how the state chooses to resolve the allocation when there are more than two candidates, yes, that could theoretically happen. Why do you think that’s a bad thing?

          1. ” Why do you think that’s a bad thing?”

            It doesn’t solve the problem, it just kicks it down the road a little bit.

            The objection to winner-take-all is that minority party members don’t, effectively, get to vote. This leads to cases where the guy who got fewer votes wins the election, because some votes count for more than other votes. (I can win 50.1% of the votes in 270ish electors worth of states, and 0% in the others, and win the election with 40% of the votes cast compared to the other guy’s 60%.
            Switching that the proportionally awarding the electors makes the problem smaller, but doesn’t make it go away. I can STILL barely win in some districts, and totally lose in the others, and win the election even though more voters wanted the other guy.

            If I think that the guy who wins the election should be the guy who got more votes than the other guy, then that should be how the election is decided. If some factor says that the system should be more complicated (as EC supporters claim), fine… but spell out why that factor should allow the guy fewer people chose, and how the altered method for winning te election serves that factor. “That’s the way we’ve always done it” is not an argument to keep doing it that way.

    3. Hey Smooth,
      Is that not what the electoral college does now? One electoral vote for each House district and one electoral vote for each Senator? Similar to the way that the Congress was originally set up with the House representing the people and the Senate representing the State?

      1. No. Here the state winner gets two votes and the popular winner in each district gets one. Most states are winner-take-all.

  5. Might have been easier just to say that the civil penalty was for making the false representation that in every conceivable circumstance, they would vote for their team. Given that the state must select a handful from among its millions, requiring sworn rabid partisanship seems to bear a reasonable relation to the desired ends. “Boost for Birdsburg” placards optional.

    A more interesting case might be whether a state has the power to appoint electors sworn to withhold their vote in protest, or to cast a protest vote.

  6. I haven’t double checked this but my state Senator told a meeting that this session they changed the law so that any elector who doesn’t vote according to state government wishes gets replaced by someone who will. Replacement is a different thing from a fine though many of the same arguments could be adduced.

  7. I would suggest the voters of the State of Washington to pass a ballot proposition permitting any voter to sue any elected official for failing to act consistently with his campaign pledges.

    The Washington Supreme Court’s reasoning applies equally to all state officials. If the Constitution permits any state officials to be punished for failing to keep their campaign pledges, why not punish all of them?

    1. Why stop there? Why not make lying a tort, in any circumstance?

      “Ladies and gentlemen of the jury, testimony will show that on or about Jun 15, 2022, the defendant did say to my client that she did not look fat in the jeans she was wearing at the time. She did then proceed to wear those jeans in public, incurring humiliation and scorn from multiple onlookers. We cannot let this heinous act go unpunished. YOU, the jury, cannot let this go unpunished…”

      1. IIUC opinion is not fact and therefore not a basis for bringing a law suit. Beauty (fatness) is in the eye of the beholder!

        1. You are correct that if you apply today’s law to the hypothetical, you would get a different result than the (not entirely seriously) suggested change would produce.

  8. ‘Faithless Electors’ should be a ‘Fugazi’ cover band.

  9. Only a thousand dollar fine? Washington is part of the popular vote State Electoral compact. If I were an elector, I’d pay the 1000 and vote based on who won my state, not who won California.

    By the way, despite the claims Hillary won the popular vote, she didn’t. She got 48.2%. The constitution requires a majority of the Electoral College or it goes to the house. I’d be pretty upset with a system that elects the President on a popular vote and doesn’t require a majority, but we don’t want a system that throws every election to the House either.

    Best to keep things they way they are.

    1. ” I’d be pretty upset with a system that elects the President on a popular vote and doesn’t require a majority”

      Depends on how many candidates. Primary elections can have any number of candidates; sometimes a clear winner doesn’t have a majority in a crowded field. If Presidential elections had a dozen candidates, 25% might be a winning percentage.

      1. It doesn’t matter how many candidates are running, either one gets a majority (>50%) or one does not. If not then the Constitution has a process to resolve said lack of majority.

        1. “It doesn’t matter how many candidates are running”

          You’re assuming that what the Constitution prescribes as the procedure for holding elections matches 100% with what would make me upset. This assumption is incorrect.

          Seeing as how a hypothetical change to the Constitution is directly implied by quoted text, this is doubly foolish.

  10. I think the dissent is more correct here. An Elector is a Federal office, imo. Electors are chosen by the states, but they aren’t state officials. The majority opinion is akin to saying the states could prosecute or remove Senators or Representatives from office for not doing what the state government tells them to do.

    1. ” An Elector is a Federal office, imo.”

      I think that’s a stretch. You’re seeing them as similar to Senators, but I don’t. You send a Senator to Washington, and they stay there for six years. You send an elector to wherever the heck electors meet, and they stay there for a couple of days, then they come back home to the state.

    2. However the State(s) determine the rules that apply IAW the Constitution. I would also note that if a State so passes, they can remove a Senator/Representative, aka impeachment.

      1. Say what ?

  11. I agree that, regardless of whether an Elector holds a federal or a state office, neither the federal government nor the state has power to interfere with an elector’s free choice, not to replace a duly appointed elector because state officials son’t like the way the elector voted.

    The word “elector” is also used to describe people who vote for members of Congress and state legislatures. If state officials can punish or disqualify electors because they don’t like their votes or they disagree with the opinion of some other body on one issue, the constitution’s text articulates no reason why they can’t do so for the other. State legislatures appoint electors for President and determine the qualifications of electors for Congress. If the appointment power includes power to control an elector’s vote once appointed, there is no logical reason why the qualification power shouldn’t either.

    I disagree with Ray and think it should be overruled for the reasons in Justice Jackson’s dissent. And even given Ray, a power appoint does not extend to a power to control conduct once appointed.

    If states want faithfulness, they should put the electors’ names on the ballot and let the voters decide which ones they want to select. It is the states that are being dishonest by not even identifying who voters are actually voting for.

    1. “neither the federal government nor the state has power to interfere with an elector’s free choice”

      Another view is that the elector’s free choice is exercised when they declare which candidate they support and get listed on the ballot under that name. Voters who voted for them under that representation feel cheated if/when the elector goes off and votes for someone else. If you view it as a contract (or at least, like a contract), then there’s no conflict.

      Imagine if someone enters a party X primary, manages to win, then goes on to win the general election, and THEN says “Oh, by the way, I’m actually party Y”. Are the members of party X justifiably angry? Is there an argument that they consumed the resources of party X under deceptive circumstances, and ought to be liable to party X for those costs?

  12. I’m siding with Washington on this one.

    Art II, Sec 1: Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . .

    How can anyone argue you can appoint someone to a position but not set ANY conditions on the appointment?

    Suppose a state said an appointment is conditional upon the Elector remaining in good standing (e.g., defined as have no current warrants), or must be a citizen of the state, etc.

    No problem here.

    1. How can anyone argue you can appoint someone to a position but not set ANY conditions on the appointment?

      But this is not a condition on appointment, it’s a regulation about how you must exercise your office after you have been appointed to it.

      Thus for example, Trump might nominate, the Senate might confirm, and then Trump might appoint, a federal distruict judge. Trump might specify in whatever deed of appointment that is deployed, that the appointment is conditional on the judge always ruling in Trump’s favor in any case in which Trump is a party.

      The condition would be entirely without legal effect.

      Presumably in this case, the Elector has a federal cause of appeal, on constitutional grounds, and I’d be a bit surprised if this decision stood. It seems akin to a State fining a US Senator for voting in Congress contrary to the demands of some State law.

      1. “But this is not a condition on appointment, it’s a regulation about how you must exercise your office after you have been appointed to it”

        We have lots of these. They’re called “laws”. As an example, federal judges are appointed for life. But, when it comes to sentencing, sometimes mandatory minimums apply. You know, a regulation about how the judge may exercise their office after they have been appointed to it.

        1. IMO a good case could be made that voting is different from other duties like sentencing. The word itself implies making a choice, and that the choice could be different from another voter facing exactly the same options and information.

          Like Lee Moore said, it would be strange to fine a US congressman or even a state legislator for voting incorrectly. If they have to vote a certain way on a issue, why hold a vote on it in the first place? It boils down to whether one thinks the Electoral College was supposed to be a decision making body, or was only a way to respect federalism and the interests of smaller states.

          1. “If they have to vote a certain way on a issue, why hold a vote on it in the first place?”

            It’s a holdover from the days when communication speed was limited to “man-on-horseback” speed. The states all hold their elections on the same day, have time to get it all sorted and counted, then they send the electors to deliver the results on a second day. You’re inserting “voting” into their job description and then inferring meaning from that, but they are “electors”, not “electoral voters”. Think of them as messengers tasked with carrying the message “the voters of my state want X to be President” rather than as representatives tasked with independent decision-making authority. If they need to use representatives with authority for independent decision-making, there’s a whole House of them to make the decision.

Please to post comments

Comments are closed.