Steady as She Goes on Faithless Electors

|The Volokh Conspiracy |

The Supreme Court did its best to leave things as they were in the faithless electors case. One nightmare scenario of the Electoral College is the possibility that presidential electors might change the outcome of an election as decided by the general electorate in November by breaking their pledges and voting faithlessly. Since the mid-twentieth century, a number of states have tried to discourage faithless electors by providing statutory mechanisms for replacing or sanctioning them. The "Hamilton Electors" movement of 2016 put pressure not only on the longstanding norm that presidential electors should be faithful to their pledge to cast their ballots for the winner of their state's popular vote but also on these state laws designed to discourage faithless electors. The Supreme Court has now given its blessing to those state laws.

The decision at least avoids blowing up the current system. The Court reemphasizes the existence of the longstanding norm that presidential electors adhere to their pledges, and it allows states to take actions to enforce those pledges. If the Court had struck down those laws and highlighted the idea that presidential electors were autonomous agents, it might well have encouraged more Hamilton Elector movements and more faithless electors in the future. It might have slightly increased the odds of the constitutional crisis that would inevitably result from the Electoral College attempting to change the results of the November election.

Unfortunately, the Court's decision cannot eliminate the possibility of future faithless electors or the (hopefully remote) possibility that faithless electors could flip the result of a presidential election. The existence of human beings serving as intermediaries between the voters and the final results of a presidential election remains a serious problem in the constitutional design. It would be best if politicians could set aside their other differences and take the modest step of moving forward a constitutional amendment to eliminate presidential electors (which can be done without making any changes in how electoral votes in presidential elections are allocated or counted). In the meantime, states might as well take advantage of this ruling to adopt robust statutory measure to minimize the risk of faithless electors.

The Court left the status quo in place, but it is not obvious that the justices gave us the best reading of the Constitution. Justice Kagan, for the majority of the justices, argued that when the federal Constitution empowered states to appoint electors it also empowered the states to attach conditions on that appointment that would effectively direct the electors' choice of presidential candidate. Justice Thomas, joined by Justice Gorsuch, argued that any such power was among those reserved to the states by the Tenth Amendment. Either way, it would be an oddity in the constitutional design if electors could be appointed to cast a ballot but could exercise no choice regarding for whom they would be casting a ballot.

The majority emphasizes that our traditions and practices can effectively "liquidate" the meaning of the constitutional text. In this case, we have a long history of pledged electors and an established set of norms that call on electors to adhere to their pledges, and the Court finds that history meaningful. Justice Kagan's opinion does not, however, shed much more light on the problem of how we are to assess the significance of such traditions.

I have argued that we should think of this tradition of pledged electors as a "constitutional construction" that is consistent with the constitutional text but not required by the constitutional text. I thought the Hamilton Electors in 2016 were wrong to simply ignore that practical construction of the nature of their responsibilities. But that by itself does not tell us whether such constructions can be leveraged to empower state legislatures to punish or replace faithless electors or whether this longstanding norm has fixed the meaning of the text in a way that cannot be altered by future changes in our shared practices. How constitutional text and tradition interact is a difficult conceptual problem, and the Court's opinion highlights that problem without doing very much to explain how it ought to be resolved.

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  1. “,,,Either way, it would be an oddity in the constitutional design if electors could be appointed to cast a ballot but could exercise no choice regarding for whom they would be casting a ballot….”

    But aren’t you begging the question. Why would it be an oddity? Given the enormous lengths and expense states go through to hold elections, it seems normal and expected that these eventual electors are doing nothing more than a pro forma function, and are doing it only because of poor wording in the Constitution.

    I get that there are policy reasons to support the idea of rogue electors. But weighed against the civil war (metaphorically only, I hope) that would result from changing the result in a presidential election? This is not even a close call for me. Nor, I expect, for 99.998% of the rest of the country . . . if you take out the real-life possible advantages/disadvantages in the upcoming election. If you asked people, “How about getting rid of faithless electors, and this change will take effect in 16 years?”, I can’t imagine too many people arguing in favor of them remaining.

    In our body politic; they’re our Constitutional appendix . . . and I hope not to be around if and when it ever bursts.

    1. Because if the process was to cast votes decided by the popular vote, why bother with having actual electors? Why not just define the process and skip the electors?

      1. It wasn’t the original process.

        It also offers a safeguard in case of oddities. Like the candidate dies right after the election.

    2. ” Why would it be an oddity? Given the enormous lengths and expense states go through to hold elections, it seems normal and expected that these eventual electors are doing nothing more than a pro forma function, and are doing it only because of poor wording in the Constitution.”

      Except that the electoral college isn’t some bizarre implementation of direct elections. Historically, Presidential elections are a Rube Goldberg addition to the electoral college.

      1. So your point is that the states were to choose electors as they liked, and choosing them by election is not required? OK, but that hardly makes it “a Rube Goldberg addition to the electoral college.”

        Anyway, I agree with Santamonica that it’s no oddity at all. It’s within the prerogative of the states to set conditions. They don’t have to.

        Suppose a state simply said that candidates for elector are not required to pledge their support to a specific Presidential candidate, but if they do, and win, they must follow through on the pledge? This is more than truth in advertising.

        1. “no more than truth in advertising.”

        2. What makes it Rube Goldberg is the effort to convert an electoral college system into an ersatz popular vote, while retaining the electors. Adding the NPV compact would just be another mouse trap.

          Should just amend the Constitution; An amendment to get rid of human electors would be easy to pass, but for Democrats wanting to revise the system from the top down, and both parties being reluctant to use Article V for fear that the pressure for other amendments they don’t want would become too strong, maybe leading to a Convention if they didn’t deliver.

  2. The whole thing seems like a tempest in a tea pot to me; why have this intermediate “electoral college” with explicitly named “electors” if they are merely robots pledges to cast their votes as told to? Might as well have the process without the intermediary.

    This decision seems to me (IANAL) to say that electors can’t make independent decisions in states where the legislature tells them how to vote, which seems at least to acknowledge there is an actual intermediate election. But all it does is change who overrides the state’s popular vote, from the explicitly-named “elector” to the legislature. I suppose the advantage of that is the legislature being held responsible by the people at the next election, but that’s about as useful as everything else the public could — but seldom does — hold legislatures responsible for at the next election.

    1. This decision seems to me (IANAL) to say that electors can’t make independent decisions in states where the legislature tells them how to vote,

      Not quite. It says that electors can’t make independent decisions in states where the legislature tells them to vote how the general electorate of the state voted. That’s a significant difference, in that your version led you to draw the following erroneous conclusion:

      But all it does is change who overrides the state’s popular vote, from the explicitly-named “elector” to the legislature.

  3. “our traditions and practices can effectively “liquidate” the meaning of the constitutional text”

    Living Constitutionalism in all its “glory”.

    1. Will Baud is kicked out of the originalist club now?

      https://reason.com/2019/02/18/constitutional-liquidation/

      1. I am not the Grand Poobah of Originalism, I am not even an originalist.

        But if I were, that Baude post is in fact Living Constitutionalism.

        It treats practice/tradition as a substitute for an amendment process. If practice can change the text, then the amendment process contained in the document is just fluff, not needed. Yet it exists.

        1. It the two are not mutually exclusive. It’s possible for both methods to peacefully coexist.

          1. Yup, just like matter and antimatter. Or maybe cancer and good health; Cancer doesn’t kill you instantly, after all, so it must be able to peacefully coexist with good health.

            Look, originalism and living constitutionalism are polar opposites, utterly antithetical approaches to the law.

            Originalism says that the Constitution is interpreted as any old document: It has a meaning already, it has that meaning whether or not we like it, and you find that meaning by the same general process you’d use to find the meaning of anything that was written a long time ago: Dictionaries and grammars of the appropriate age, evidence from that time as to what the authors and readers understood it to mean.

            And then, if the meaning you find is something you don’t like, it’s still the meaning, until you formally amend it.

            Living constitutionalism won’t admit the law has its own meaning, which it has even if you don’t like it. It’s just a collection of hacks for asserting a text means something you like, when the original meaning is something you want to reject. The only time living constitutionalists admit the Constitution has a meaning they don’t like, is when they think they can’t yet get away with imposing a new meaning on it.

            Numbers, for instance. It’s really hard to get away with reading 4, and saying it means 5, so living constitutionalists don’t try that. Anything less stark? They’re game for distorting it. When has a living constitutionalist ever said the constitution has “evolved” in a direction they don’t like?

            Living constitutionalism is rewarding, originalism not so much, because originalism often tells you things you don’t like, living constitutionalism never. So it isn’t surprising that originalists often backslide.

            Originalism is also punitive in the sense that being a consistent originalist pretty much kills any chance you had of becoming a judge. The people nominating and confirming judges don’t want originalism, (Though they might find it necessary to say they do.) because it severely limits their power.

            Originalism is dying today, of stage 4 living constitutionalism. I don’t expect it to exist much longer as a serious movement, though it will continue to be a convenient sheep’s skin for the living constitutionalist wolves to wear.

            1. So noble. By way of strawmanning the other side, as usual ignoring the many well-defined not outcome-oriented doctrines put forth by non-originalist scholars.

              Also: it’s BS. After the reaction to Gorsuch’s textualism, it’s pretty clear that what you accuse living constitutionalism of doing, is a thing you require from conservatives.

    2. “our traditions and practices can effectively “liquidate” the meaning of the constitutional text”

      Living Constitutionalism in all its “glory”.”

      Bob, if that’s true, then James Madison is a living constitutionalist. Because he wrote it.

  4. Easily the worst SCOTUS decision I’ve ever read. Their arguments and examples in support of their tortured reasoning were atrocious.

    It would be laughable if these weren’t supposedly the nine best Justices we have.

    1. Worse then Dred Scott, Plessy v. Ferguson, Korematsu v. U.S., and the Insular Cases? Wow

      1. You’re shock presumes that I read those opinions.

        1. So now I’m wondering just how many opinions you have read? If this is the only one it could be both best and worst…

  5. The Court holds that faithless electors can be fined or otherwise punished if they fail to vote as they said they would. It is my understanding that they can also be replaced ahead of the voting if they announce that they will not follow the pledge they made.
    And, according to the Decision, 15 States can substitute out for the electors if they vote against their pledge and results of the election.
    But what if despite all the threats, in all the rest of the States, once they have voted, what happens to their vote?

  6. are not these pledges and oaths taken in order to be in their positions considered fiduciary contracts, and violating that contract with the people is considered a breech of contract, and in some cases, commercial insurance fraud ? and, when they violate that oath, they wave their immunity from suit via 15 USC 1122 ? as a average person, it would be nice to see the law applied the same to all, every time. why should it make a difference that an attorney or litigant , either remembers or forgets to quote a specific case? it is the job of these judges to know the law, how it is applied, to know how it has been decided, when it is wrong or right, and should be making sure this application of the law is applied the same throughout each of the states. i ask these things, because like every member of every part and station in our government, they are all required to take the same oath for their position, which authority comes only from the consent of whom they have been put there to govern. why would any position be expected any more, or any less, to adhere to this contract? any deviation from this, they have acted outside their scope of their authority, and are no longer protected by immunity of any sort. i would honestly like to see the possibility of criminal sanctions, instead of only civil remedies when it comes to the positions of trust like these, as the threat of financial loss is usually passed of to the public, and teaches none of them a lesson.

    1. Well, that was gibberish. Only missing a reference to gold fringes on a flag.

  7. Nowhere in the Constitution does it mention popular elections for the office of President. It says the state legislatures select electors who will then vote for President and Vice President. If the state legislature can tell the electors how to vote, they can tell you how to vote and fine or imprison you when you don’t comply. This is a very dangerous and terrifying decision. Never before in this republic has the outcome of casting a ballot been decided prior to that ballot being cast.

    If the legislature’s can force their electors to cast their ballots in accordance with the popular vote they can do the reverse as well.
    Imagine the horror and violence that would ensue if say the Texas legislature threatened to sanction or just flat out replaced their electors for not voting for Trump in November even if the popular vote went to Biden (heaven forbid in more ways than one).

    This is just another terrible decision by 9 folks who are supposed to be smarter than us. You would think they could just read their raison d’etre once in a while without the penumbra hallucinations and see that all who vote should do so with their conscience as their guide not the armed thumb of the state.

    1. Never before in this republic has the outcome of casting a ballot been decided prior to that ballot being cast.

      Oh really?

    2. If the state legislature can tell the electors how to vote, they can tell you how to vote and fine or imprison you when you don’t comply.

      If the legislature’s can force their electors to cast their ballots in accordance with the popular vote they can do the reverse as well.

      Your pseudonym is definitely not warranted. There’s nothing in the SCOWA decision nor SCOTUS’ affirming of it that supports your “reasoning” above.

      1. On the contrary: the examples they offered up for what constitutes ‘voting’ clearly indicate such actions would be acceptable because in their mind “voting” has a lot of different meanings.

        I suggest you actually read the opinion.

  8. The really interesting cases will come up if and when the National Popular Vote compact takes effect. Regardless of whether a particular state is a member of the compact or not, some of its electors may well decide it ought to be, or ought not to be, and cast “faithless” votes to conform to that belief. If those votes are upheld, someone is going to get very upset.

  9. what is the point of electors if they can’t make independent decisions? Might as well drop the whole charade and send a sealed letter with the vote tallies via courier.

    1. Can’t.
      Cause originalism.

      (To be fair, it’s right there in the text – even I think you’d need an amendment to fix that)

      1. I’m questioning the general point of electors if their sole function is to transfer a checked box from one paper to another. Not saying you can just abolish them if you respect the constitution, which few do.

        1. States can decide whether they want electors to have discretion or not. It just turns out that many states have decided they don’t want them to. The Constitution gives the states the discretion to figure out how they want to do all of this, even if it means that in some cases the electors don’t serve much purpose.

          In theory, you could imagine an outcome where some states still have the legislatures choose electors, some allow elections of electors without a relationship to any particular candidate, and others requiring electors to basically transmit the “winner takes all” will of the people of the state. In practice, almost all of the states have opted for the last option (Maine and Nebraska being minor exceptions) but the Constitution is fine with that outcome.

          1. It seems to me the constitution clearly gives the state legislatures the power to determine how electors are selected. It’s less clear to me that the constitution gives state legislatures the power to direct their votes after they’ve been selected. But it was clear enough to 9 members of SCOTUS, and that is the opinion that actually matters.

  10. Regardless, I do applaud the court making this decision, especially before the upcoming election.

    Certainty here is very important.

  11. So why can’t states also require congressional candidates to pledge how they will vote if elected, and fine them if they change their minds? In the ’90s the Supreme Court struck down some state laws that gave special ballot recognition to candidates who’d made such a pledge.

    1. Because congressional votes are vastly more complex than the votes of electors.

      This has been explained before. Try to keep up.

    2. So why can’t states also require congressional candidates to pledge how they will vote if elected,
      Because the people hold ELECTED representative responsible.

  12. Given they left unaddressed the question of whether states can overwrite an elector’s vote, the idea that they can’t exercise independent judgment is overstated. However, they can be bound to a promise to vote a certain way and penalized after the fact for the breach of their agreement. Under those circumstances, the spoiled vote still counts, they just would have to live with the consequences. Of course, if a state wanted a truly independent elector, I’m sure there’s some way to create that system too.

    But the big question has been left unaddressed for now. Given the low stakes involved with most faithless electors, I suspect that’ll stay the way for a long time.

  13. Note that even when the state legislatures directly elected the senators, they still couldn’t bind their votes. So why is this different?

    1. For any number of reasons.

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