The Faithless Electors Decision Doesn't End the Possibility of Constitutional Crisis

|The Volokh Conspiracy |

Today, in Chiafalo v. Washington, the Supreme Court held that states may punish "faithless electors," members of the Electoral College who fail to vote as they pledged. Seven Justices relied on Article II, § 1, which allows States to appoint electors "in such Manner as the Legislature thereof may direct."

The Court finds constitutional not only ex post punishment for a faithless elector, but also state laws that "immediately remove a faithless elector from his position, substituting an alternate whose vote the State reports instead." This is the approach taken by most of the states that restrict electors' freedom and also the approach of the Uniform Faithful Presidential Electors ActChiafalo itself does not directly involve a removed elector, but the companion case of Colorado v. Baca does, and the Supreme Court reversed the Tenth Circuit's decision to remove the elector, albeit without explicit comment on the distinction between removal and punishment.

This decision reduces the likelihood that a Presidential election will turn on a faithless elector. But it does not eliminate it altogether. There are, after all, some states that do not compel electors to support the nominee of the party that wins the popular vote. Moreover, the decision does not address what happens if a state has a law that requires electors to vote in a particular way but the state certifies a faithless vote anyway. With sufficiently high stakes, it is plausible that a state's executive or judiciary might allow a faithless elector to continue in office, the apparently applicable state provision notwithstanding. Surely creative lawyers will be able to find some provision of state law, statutory or constitutional, that provides an arguably nonfrivolous basis for not removing an elector.

In such a case, the Supreme Court might intervene, finding the state obliged as a matter of federal law to follow the true meaning of the state law. But it is hardly clear that the Court would. In Bush v. Gore (U.S. 2000), Chief Justice Rehnquist and two other Justices held that because Article II, § 1 refers specifically to the state "legislature," the federal courts have an obligation to ensure that the wishes of the state legislature are followed. But four Justices disagreed and two did not resolve the Article II question. Thus, even after today's cases, the Justices have considerable freedom to handle a faithless elector permitted by the state however the Justices like.

I do not believe that the Justices would take just any excuse to resolve a Presidential election in the direction they prefer, but Bush v. Gore suggests that state supreme court justices and U.S. Supreme Court Justices will often resolve colorable legal issues in the direction of their preferred candidate rather than based on their more general interpretive philosophy. The real danger of faithless electors is not that electors would ignore the will of the voters, but that there will be uncertainty as to who has won the election. This can mean that the Supreme Court may resolve an election. Bush v. Gore did at least succeed in conclusively resolving the election, rather than provoking a constitutional crisis. But it is plausible to imagine worse scenarios, for example if the President of the Senate refused to count some electors' votes or if there were an eight-member Court and inconsistent lower court decisions.

The most likely foreseeable source of a constitutional crisis involving Presidential electors would arise from the National Popular Vote Interstate Compact. The theory is that if a sufficient number of states pass laws signing onto the compact, then they all agree to cast their electoral votes consistent with the national popular vote winner. If this became firmly established, it might mitigate the danger of faithless electors, because a clear popular vote winner would receive a supermajority of electoral votes. But until the Supreme Court explicitly passes on the constitutionality of the Compact, the Compact serves as an option for the Court to resolve however it likes an election in which the national popular vote and electoral votes as conventionally calculated point in opposite directions.

For example, the Court could hold that the Compact is inoperable if not validated by Congress. There is a live debate as to whether congressional authority is required. Akhil Amar has argued that the NPVIC would be constitutional. But some commentators have argued to the contrary. My purpose is not to resolve this here, but simply to suggest that the issue is sufficiently credible (a low bar) that Justices might resolve it based on their political preferences if the stakes were sufficiently high. Suppose Congress explicitly approved the Compact. It might seem that the next time there is a divided Democratic government, Congress would choose to do this, given the perception that the Electoral College helps the Republicans. But that is a double-edge sword. While it would remove the argument that the NPVIC is an unauthorized interstate compact, it would make it easier for the courts to intervene in NPVIC disputes. The Compact would then be enforceable in federal court, facilitating intervention in any disputes.

In any event, the Court would have plenty of arguments available to strike down the NPVIC. For example, the Court could hold that the NPVIC is an unconstitutional delegation of state power, violating the Guarantee Clause. Sure, the Court today seemed to indicate that the Legislature has great latitude in determining the manner in which electors are to be appointed, but that power might have some outer limit. (Could a state promise to appoint electors based on a poll of the citizens of France?) My point, of course, is not to endorse these arguments (National Popular Vote advocates certainly have counterarguments), but to suggest that the Court could find a way to overturn an NPVIC result, if motivated to do so. Thus, enactment would not necessarily favor the Democrats, at least so long as Republicans control the Supreme Court, and enactment might well increase the risk of a true constitutional crisis that the courts are unable to resolve. Today's cases usefully resolved an issue before it was critical, but it seems unlikely that the Court will be able to resolve the constitutionality of the NPVIC until the first post-enactment election in which it matters.

NEXT: It’s Not Just Face Masks. Everything Is Now a Political Death Match.

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  1. ” My purpose is not to resolve this here,….”

    Perhaps it’s unfair to pick on this one line, but that’s a bit of an overreach to suggest that the Michael Abramowicz analysis *would* resolve the issue.

    1. But your comment is sufficiently wise and powerful to resolve the issue of whether this post resolves the elector issue.

      1. Is that an attempt at humor, sarcasm, or condescension? One really can’t tell.

        1. Excellent. It has served its purpose. One wonders if your comment had any purpose.

          1. You ought to look up “Poe’s Law”. It might help you with your trolling to be aware of it.

            That said, since it was apparently to subtle for you, let me explain for you like a Cliff Notes version: my original comment is a way of expressing a bit faux shock at typical professorial hubris.

  2. That was my impression: The Court did not quite reduce electors to automatons; Faithless votes in the EC are still quite possible. In some states they don’t even require the connivance of state officials.

  3. the National Popular Vote Interstate Compact would seem to me to increase the probability of faithless electors, if for example a candidate won the popular vote and one or more electors found that candidate completely unsuitable.

    Suppose a state voted for one candidate but the majority of the country voted for a different candidate, how would the state insure that the electors would follow the legislatures mandate?

    I’m just not sure how that system would operate. I suppose the legislature could appoint the electors after the election but if the legislature was controlled by the opposite party, could they be sure the legislature would act?

    1. They would control it in one of two ways. Either by not allowing faithless electors to vote (i.e., once it becomes apparent that a particular elector will be faithless, that elector is immediately removed and replaced by a faithful elector). Or by imposing penalties on faithless electors.

      You know, even if I otherwise thought the electoral college was a good idea (federalism, protecting political minorities, etc.) the amount of mischief it can do strikes me as more than ample reason to get rid of it. I don’t believe there’s been a single instance in which it saved us from an otherwise catastrophic choice (and mere political disagreement with the Democrats is not the same as a catastrophic choice). On the other hand, it gave us that glorious two months of litigation in 2000, and two or three faithless electors really can upend a presidential election. Trump’s election proved that if everything aligns just right, there is literally no such thing as politically ridiculous; literally anything can happen.

      Conservatives just need to recognize that their partisan advantage isn’t worth the damage it does to our governance. Let’s get rid of it before one of these awful “what if’s” actually happens.

      1. As you say…it (the EC) is not broke. No need to ‘fix it’.

      2. Suppose an elector didn’t announce his or her intention to vote before the actual vote was cast?

        I’m sufficiently ignorant that I don’t know but do the electors hold secret vote or do they have a roll call or does it vary by state?

        If it were a secret ballot there may be no opportunity to remove an elector before the deed was done.

        1. They then refuse to count the vote, replace the faithless elector, and vote again. That’s pretty much what happened in Colorado in 2016

      3. “I don’t believe there’s been a single instance in which it saved us from an otherwise catastrophic choice”.

        So, from your highlight about the Florida controversy, (Which wasn’t really the electoral college, so much as how the president is chosen, by state), I’m assuming you’d rather go to some sort of national popular vote system. But, let’s highlight some areas where the EC has had a positive impact.

        1. It ensures a President has a “majority vote” to be President. The issue here is, pretty often neither candidate has an absolute majority of the popular vote. Without an EC system, in each of these cases, the election would be kicked to the House (with odd results, like in 1996 for example).

        2. You cite the Florida controversy. But imagine how much worse that would’ve been if it was on a National level. Close elections (like in 1960) would require a National Recount, with all the conundrums that occur.

        3. It prevents a partisan state from playing shenangins with the election rules for gain. For example, if California didn’t let Trump on the ballot, it wouldn’t really matter under the current system. But under a National popular vote system, it would throw the election.

      4. “Conservatives just need to recognize that their partisan advantage isn’t worth the damage it does to our governance. ”

        LOL

        So high minded of you. Just thinking of the country.

    2. There are two slates of electors in each state identified before the election: one for Trump and one for Biden. Under the NPV, if Biden wins the national popular vote, his slate his appointed. Thus, I’m not following how “one or more electors [from Biden’s slate] found that candidate [Biden] completely unsuitable.”

  4. I think the phrase “constitutional crisis” is so overused these days. What is a real constitutional crisis? Does a potential court case that the Supreme Court may eventually resolve and which will be broadly accepted by most stakeholders qualify? No. I don’t think so. Any further electoral college dispute is likely to wind its way through the courts and be accepted by the political branches and most of the society. That is hardly a “constitutional crisis” by an means.

    What might be a true “constitutional crisis” or at least an example? Perhaps a state announcing it is leaving the Union then closing its borders. Or the President overstaying his term while still exercising the levers of power (I don’t think a President holed up in the White House without any real authority qualifies.) These might be an actual “constitutional crisis.” Otherwise, it is just bluster.

    1. What if POTUS and VPOTUS died? The Speaker is next in line according to the Presidential Succession Act of 1947, but the Secretary of State claims the Act is unconstitutional as the Speaker is not an Officer of the United States.

  5. None of the punishments thus far have been anything but tokens, and not sufficiently strong so as to alter the likelihood that an elector would refrain from becoming ‘faithless’.
    If an elector felt a moral imperative sufficiently strongly to subject themselves to the wrath of a hundred million aggrieved voters (cancel culture raised to the millionth power), a few hundred bucks of a fine is just not going to sway their actions.

  6. Maybe I am thinking about this the wrong way. Did SCOTUS just rule that the electors must represent the results of the election within that state?

    If so, would that not eliminate the National Popular Vote Interstate Compact as unconstitutional?

    1. I don’t think so. I think they just decided the states can do whatever they want.

    2. No, they most certainly did not decide that. They decided that state law can instruct electors how to vote.

  7. The NPVIC may be billed as allowing the popular vote to prevail but, as with most (all) other electoral politics, it’s strictly partisan. So long as the Democrats perceive that they will benefit from NPVIC they will push for it while Republicans will oppose it. If voting trends change we could easily see the parties reverse their position on the NPVIC.

    It is interesting that most electoral reform debate revolves around the assumption that the Democrats have more support among the masses while Republicans retain power by support from a minority of voters in smaller states (taking advantage of the nature of the Senate, Electoral College, and House districts). But just as Democrats eliminating the judicial filibuster has backfired (allowing record numbers of Trump judges to be approved) we could see Republicans win the popular vote but lose the (traditional) Electoral College vote. At which point I predict a number of left leaning states will be scrambling to figure out how to repeal their NPVIC law between the election and the Electoral College vote.

  8. “a clear popular vote winner would receive a supermajority of electoral votes”

    What exactly is a “supermajority” (as opposed to a majority) in this context — 60%? 67%? — and why would the popular vote winner get it under the NPVIC if only states with a bare majority of electoral votes sign on?

    “It might seem that the next time there is a divided Democratic government, Congress would choose to do this, given the perception that the Electoral College helps the Republicans.”

    What is a “divided Democratic government” and how would it approve the NPVIC?

  9. I find it incredibly interesting that we both spent today thinking obsessively about NPVIC. Great minds think alike.

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