Will the Faithless Electors Cases "Do Grave Damage to Originalism"?

Professor McGinnis worries that "some justices who might be thought to harbor originalist sympathies openly appealed to consequentialist arguments"

|The Volokh Conspiracy |

Earlier this month, the Supreme Court heard oral argument in the so-called "faithless electors" cases, Chiafalo v. Washington and Colorado Department of State v. BacaProfessor John McGinnis worries that originalists on the Court may let pragmatic concerns trump original meaning altogether.

John compares these cases to Noel Canning: these cases lack any controlling precedent, and can be decided without regard to stare decisis.

The cases' significance for originalism stems from the absence of controlling Court precedent on the question of a presidential elector's discretion. Most Supreme Court cases have prior cases that arguably dispose of the issue, but these do not. The only case about the obligations imposed on electors, Ray v. Blair, concerned moral pledges that parties required of the electors, not the very different question of whether the electors' choice can be disciplined by law. In their lack of controlling precedents, these new cases resemble NLRB v. Noel Canning, in which the Court had to address, for the first time in its jurisprudence, certain important questions about the scope of the Recess Appointments Clause.

I analogize Noel Canning to originalism in "precedential open fields, as opposed to deep in the thicket." There are no institutional constraints to follow some wayward precedent from the Warren Court. Here, the faint-hearted originalists can't hide behind stare decisis.

Instead, McGinnis warns, they'll hide behind precedent-by-another name: call it the "chaos" theory of constitutional law:

Unfortunately, if the oral argument for the cases about presidential electors is any indication, the Court may do grave damage to originalism by suggesting that the bad consequences of a constitutional provision or practice subsequent to the time of its enactment can override its original meaning….

And in oral argument, some justices who might be thought to harbor originalist sympathies openly appealed to consequentialist arguments. For instance, Justice Kavanaugh suggested that when it is a "close call" on meaning, the Court might consider avoiding the "chaos" that he implied might follow from a decision allowing electoral discretion.

John explains that the Justices' concerns for "slippery slopes" will always trump original meaning;

Furthermore, who is to decide how "close" the case must be to permit the consideration of consequences? That is a slippery slope that will allow the original meaning to become merely one consideration among many. For instance, assume that the question of whether the Second Amendment protects an individual right to bear arms is close, even if the better view tips in its favor. Kavanaugh's approach would authorize judges to decide the case based on their assessment of the consequences of various gun control measures.

At bottom, a ruling against the electors could "bury originalism."

As Mike Rappaport and I have argued, it is constitutional for judges to follow Court precedent rather than original meaning. It is even warranted in certain, limited circumstances. Originalists need to frame better-reticulated rules about what those circumstances are. But inviting judges to consider the consequences of their decisions or the recent practice of other governmental actors as guides to interpretation threatens to bury originalism.

Seth Barrett Tillman and I had similar concerns after oral arguments. We wrote two posts about how to properly characterize electors as a matter of original public meaning: we think they hold "public trusts under the United States." But we acknowledged that some of the Justices worried about that "chaos" that could result in a judgment for the electors. As a result, we offered a middle-ground approach to help reconcile the original public meaning of the Constitution with pragmatic concerns. If the Court is truly motivated by a desire to avoid "chaos," and cannot rule that electors have discretion, our approach helps to avoid originalism's burial.

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  1. With all due respect Prof. Blackman, that “middle-ground approach” offered in your earlier posts was not very plausible. It relied on a scheme where the electors were only officially appointed after they had cast their vote.

    Your approach doesn’t do any favors for originalism or textualism, either. The text straight up says the votes will be cast by electors, not by potential elector appointees, and there is no evidence that the original meaning for anyone involved some paradox where an elector votes and doesn’t vote (or is appointed and not appointed) at the same time.

    1. This is what I find so crazy about this brand of “originalism.” Yes, Alexander Hamilton and some other framers seemed to have envisioned an electoral college as a gathering of wise men who would exercise discretion in choosing a President, but the actual practice essentially from day 1 under the Constitution has been to treat electors as proxies for direction by the state legislature (who pretty quickly turned that over to some segment of the people’s vote). There have been no real or meaningful exercises of discretion in the 220+ years of practice.

      I would think that that would be better evidence of the “original” meaning than what Hamilton may have written in the Federalist.

      Moreover, there is some real hubris in a bunch of guys 225 years after the fact telling us what the “original meaning” really was when that is contrary to what actually happened from day 1. All of this reminds me of Talmudic discussions about the real meaning of the Torah given to us by Moses, and a classic Talmudic story about what Moses would have thought about these Talmudic discussions (very meta commentary). Here if you are interested (yes Reform site, but the story is from the Talmud) https://reformjudaism.org/learning/torah-study/emor/what-would-moses-say

      1. Love the last paragraph, especially appropriate for this evening. Chag Semeach Shavuot. 🙂

      2. If practice on day 1 can overrule the plain meaning of the constitution, what about practice on day 2? Or day 3? What’s the cut-off?

  2. We’d all be better off if we ditched this shit system anyhow and just went popular vote where one person=one vote. Small, unpopulated states still have the Senate to hold everything up anyway.

    1. Even if you’re right about that — and lots of people disagree — is it really a helpful comment in this discussion?

      We’d be a lot better off if I were God Emperor, but that doesn’t exactly advance the topic.

      1. I dunno DMN, Emperor maybe. But God Emperor seems to take it one step too far. Wait, where were we?

      2. Well, you can reason that if Roko’s Basilisk wanted to make faithless electors possible, he would have done so already. The fact that he hasn’t means that we should not try to interpret the constitution otherwise. After all, the wishes of Roko’s Basilisk should be given more weight than all other considerations.

      3. David, I take his point to be that tweaking the electoral college is like suggesting the person on a diet have pie rather than cake. The problem is best fixed by skipping dessert altogether, not by tweaking to make it marginally less destructive.

        1. Fat people are fat because of greasy, high-carb foods, not desserts.

          In this debate, that’s the massive and ever-growing power being slung about. You don’t have 10 pizzas on order every day, who cares about these electoral college details?

  3. Why not just say that when Congress counts the electoral vote, its count is authoritative and cannot be questioned in any court? I think that could work as an originalist analysis.

    1. That would work most of the time, up until we had an election in which it was close enough that a faithless elector or two would actually change the outcome, or throw the election itself to Congress. I can see multiple possible outcomes at that point, most of them not good.

      1. Well, we also had Hayes/Tilden, so I wasn’t suggesting a cure-all, simply an approach by which the courts wouldn’t make it worse.

        1. Eddy, thanks to the electoral college, we now have a president who is threatening to seize social media and tell governors they have to reopen their states, each of which is a constitutional atrocity. And who spent the first month of a pandemic that has now killed 100,000 people claiming it was a Democratic hoax. For all Hillary’s faults, I very much doubt she could have been much worse than that. So it’s hard for me to see how the courts could do *anything* to make it worse.

          If we are going to be stuck with the electoral college, as it appears we will be for the foreseeable future, we at least need clear and straightforward rules for it.

          1. How could the Supreme Court contribute to electing Hillary? If it can’t, then I’ll simply avoid the issue for this thread.

            1. My point was that the electoral college is itself so damaging that the idea of the Courts doing more damage is laughable. It would be like a murderer suing a newspaper for damaging his reputation.

              1. Whichever way the Supreme Court rules, Hillary won’t get put in the White House as a result. She’ll have to try some other method.

                1. It won’t undo the damage of 2016, that’s true. It might minimize future damage.

                  1. You realize that the “faithless electors” in this case wouldn’t have swayed the result one way or another? There was already a majority of Trump electors.

                    Not every discussion should be about how Trump is Hitler.

                    1. You realize that how this case is decided will have ramifications for future elections, so it is a mistake to only care about how it would have impacted in 2016?

                    2. “to only care about how it would have impacted in 2016”

                      You were talking about 2016 and about the fascist night (not to mention plagues) which fell upon the country for not electing Hillary.

                      It was I who suggested that the issues go beyond this particular election, whose results (I repeat) aren’t at stake in this particular case.

                    3. Yeah, I started talking about that three comments or so in, in response to your comment about not making it worse. My question is what could possibly make it worse.

                      And just to be clear, the damage was from electing Trump, not from not electing Hillary.

          2. “thanks to the electoral college, we now have a president … ”

            Assumes facts not in evidence … under a different set of rules, a different set of people would have voted. Under the current system, many Democrats in Texas don’t bother voting … many Republicans in California do the same; votes in Montana are much less valuable than votes in California, etc. Assuming the “popular” vote count of any past election would have been unchanged with a massively different set of incentives is unsupportable.

            1. How are votes in Montana less valuable than votes in California? CA has 40 times the population of MT and only 18 1/3 times as many EV’s.

              1. It hinges on winner-take-all and your definition of valuable.

                A hypothetical to illustrate: suppose the only two states were CA with 40 EVs and MT with 3 EVs, and both were winner take all. Then there is no chance that any votes in Montana ever decide the outcome.

                Someone went through the much more difficult calculation of winner-take-all across 50 states and IIRC it turned out the “best” states were somewhere in the middle.

                Of course if you view the value not in deciding the outcome but in more abstract stuff about dignity and equality and “being counted” then you’ll have a different view.

            2. I disagree with your premise that not having an electoral college would have changed the popular vote by enough to gotten Trump elected. However, even if you are right, that does not change the fact that the EC gave us the current president. That an alternative method might have also given us the current president doesn’t change that.

            3. under a different set of rules, a different set of people would have voted. Under the current system,

              Assumes facts not in evidence.

          3. and tell governors they have to reopen their states, each of which is a constitutional atrocity.

            And yet only weeks before, the left was screaming nonstop for Trump to take over the states and order a nationwide shutdown.

    2. Well for one thing, it wouldn’t resolve the issue presented in the two cases that the Supreme Court is hearing.

      1. Suppose Congress refuses to count a putative elector’s vote by the Court says the person can’t be punished for his vote because he was a genuine elector? That might cause some awkwardness and call the count into question.

        Instead, of course, the Court could say that a putative elector can’t be punished for attempting to vote – punishing the elector could be interpreted as closing off a Congressional inquiry into a putative elector’s good-faith efforts to participate in choosing the President, subject to Congressional oversight.

        1. So does the guy from Washington get his $1000 back?

          1. To repeat:

            “Instead, of course, the Court could say that a putative elector can’t be punished for attempting to vote – punishing the elector could be interpreted as closing off a Congressional inquiry into a putative elector’s good-faith efforts to participate in choosing the President, subject to Congressional oversight.”

            1. (I was under the impression that it was the custom to refund fines if your conviction is overturned – I beg your pardon for not spelling out that detail)

  4. If Stare Decisis were so important then in Heller Scalia wouldn’t have needed to engage in broad constructionism he could have simply fleshed out Cruikshank…and then in McDonald he could have incorporated Cruikshank.

    1. I don’t suppose he wanted to start with Cruikshank, since it’s central finding was, “14th amendment? Ptui!”

      1. So what does that tell you about “originalism” and the integrity of the Supreme Court?? An amendment ratified in 1868 came before the Supreme Court in 1875 and with a Republican Chief Justice appointed in 1874 the vaunted Supreme Court screwed up big time in 1876!?! Ipso facto, stare decisis is a JOKE!

  5. Originalism starts pre-buried by consequence of the fact that the Justices are chosen by politicians who don’t want to be bound to the original meaning of the Constitution. At most it can be a restraining force on the margins, and compel the Justices to offer BS rationales rather than just openly say they despise the Constitution, and don’t mean to follow it.

    1. Brett, I think what you mean is that most justices are realists who recognize that genuine originalism would be catastrophic.

      It’s the same dynamic as with Biblical literalists who, faced with Biblical passages that produce horrible results, go through the contortions of pretending to be Biblical literalists while interpreting the text in creative ways to avoid those results. In the case of both Supreme Court justices and Biblical literalists, I think they should just cut the crap and stop pretending, but that’s just me.

      1. No, I meant what I said. You’re just describing the excuse for it. But I don’t accept the excuse; Actual originalism would not be catastrophic.

        Politicians wouldn’t like it, but that’s not a catastrophe.

        1. The millions of people who would lose social security and medicare probably wouldn’t like it much either. Nor would all the unbelievers who found themselves living in places with established churches, or all the speakers and publishers who found out the First Amendment merely restricts prior restraint.

    2. Why chaos? This is the first time a state has sought to remove or punish an elector for casting a vote. Plenty of electors have voted their minds before.

      If the electors choose a different candidate than the popular vote, that’s a feature, not a vote.

      And if states have a problem with that, they can address it by facing reality rather than trying to maintain an illusion. They can put electors’ names on the ballot and let people vote for them individually and split their ticket as they can for any other office, and drop this pretense that they are mere pass-through functionaries that voters don’t even have to be aware of.

      It is states’ behavior, concealing the very existence of electors from voters and preventing them from learning anything or making any meaningful decisions about them, not the institution of the electoral college itself, that is what is depriving voters of being able to have a meaningful say in the who the electors that their votes appoint are going to be.

      1. And if states have a problem with that, they can address it by facing reality rather than trying to maintain an illusion. They can put electors’ names on the ballot and let people vote for them individually and split their ticket as they can for any other office, and drop this pretense that they are mere pass-through functionaries that voters don’t even have to be aware of.

        This is wildly unrealistic. First, anyone hoping to be chosen will have to declare who they intend to vote for. Imagine a campaign stop:

        Reporter: If you are chosen as an elector, who will you vote for?
        Candidate: I haven’t decided. I think I’ll weigh the issues and decide when appropriate.

        Voters(to themselves): That’s ridiculous.

        Second, even if it’s not ridiculous hardly anyone is going to have a stronger preference over the Presidential field than over the elector field. Nobody will say, “Gee, I’d really hate to see Trump re-elected, but I know Joe pretty well, and he has good judgment, so I’ll vote for him for elector and let him decide.”

    3. Originalism starts pre-buried by consequence of the fact that the Justices are chosen by politicians who don’t want to be bound to the original meaning of the Constitution.

      This is quite true, but it means the opposite as you think it means.

      It was, after all, the framers who put politicians in charge of judicial selection. It didn’t have to be this way; one could imagine, for instance, an expert committee doing it (cf. California’s Judicial Nominees Evaluation Commission).

      But the framers were well aware of what politicians were and how they acted. So when they put politicians in charge of this, that suggests their original understanding was that the federal courts would not be strictly originalist, or formalist, and would have some sensitivity to the practical implications of their rulings and how they might play with the public.

      In the end, you guys think originalism can do something it actually can’t do- constrain the judiciary. Indeed, the only thing that can actually constrain the judiciary is the thing you guys hate, precedent and the common law system of iterative judicial reasoning.

  6. I wouldn’t worry about it. Originalism is just another purist political ideology.

    The so-called “true” originalists will say, like the “true” capitalists and the “true” communists continue to say:

    “True originalism has never been tried.”

    There will never be a Supreme Court pure enough. That is to be expected.

    1. Part of it is that they don’t want it to be tried anyway. How many conservatives would like to see, e.g., an originalist interpretation of the 14th Amendment that permits affirmative action programs?

  7. Why should the court try to save originalism? Part of its imagined virtue is that it gives clear answers. But here, as so often, it doesn’t.

    It’s not the court’s job to adopt the bizarre Schrodinger’s Elector scheme Blackman and Tillman manufactured in order to salvage the egos of ideologues.

    Let’s just consider the possibility that the Constitution simply doesn’t answer the question at issue. Then what? We can get contrived “analysis,” or some fun-house mirror solution, or we can use common sense and recognize that two centuries of practice, combined with voters’ expectations of how the system works, make it a slam dunk that states have the authority to impose requirements on electors, with appropriate penalties.

  8. Where is there two centuries of practice of states imposing penalties on faithless electors?

    1. For two centuries electors have voted for their party candidate, as the voters have expected them to do. There may be an exception here and there but that’s basically the scheme understood to be in place.

      That some states want to formalize it seems unexceptionable. I think they all should.

      I further think that combing through the Constitution to dredge out some “originalist” reason why this isn’t allowed is academic nonsense.

      Notice Blackman’s motivation here. It’s to “save originalism.” So he and Tillman tie themselves in knots to produce an originalist justification. This has nothing to do with figuring out the law.

  9. Personally, I think the ‘Originalist’ position with regard to electors is aptly summed up in this quote by Rufus King, who had this to say to the people choosing a delegate to go to Philadelphia to draft the Constitution, “For God’s sake man, be careful whom you send!”

    Electors are free agents, so be careful who you send to the Electoral College.

  10. > better-reticulated

    Shaped like a net?

    I think (hope, anyway) that he means articulated. Unless it’s some grand metaphor about constraining interpretations with a net.

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