Electoral College

Is the "Faithless Elector" Coming to the Supreme Court?

A recently-filed cert petition gives the Court a good opportunity to rule on the constitutional role of presidential electors


A cert petition (available here) has been filed with the Supreme Court in the latest case involving "faithless electors," Chiafalo et al. v. State of Washington. [Historian Michael Rosin and I have submitted an amicus brief, available here, in support of the petition.] I'm betting that the Court will grant the petition and finally give us its views on a fascinating, and very thorny, question of constitutional law: to what extent may States control the behavior of presidential electors in the performance of their electoral duties?

The Chiafelo case involves three of Washington State's presidential electors in the 2016 election.  Each had been included in a "slate" of potential electors submitted by the WA Democratic Party to the WA Secretary of State. When Hillary Clinton won the Washington popular vote, the WA Secretary of State, in accordance with WA law, appointed the members of the Democratic slate to be the State's presidential electors.

WA law requires the electors to vote in accordance with their direction from the Party which nominated them, and backs that up with punishment if they act otherwise:

"Any elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars."  RCW 29A-56-340.

But when the State's electors convened in Olympia in December, 2016, the three petitioners in this case, instead of voting for Hillary Clinton, cast their ballots for Colin Powell. They were subsequently fined $1000 each for having so.

The question presented is whether whether the Constitution permits a State to mandate for whom presidential electors must vote, and to enforce that mandate via ex post punishment, or, conversely, whether the right of electors to use discretion in deciding who to vote for is a federally-guaranteed one that is protected against State interference.

The Washington Supreme Court upheld the imposition of the fines (opinion available here), on the grounds that Article II Sec. 1 of the Constitution "gives to the states absolute authority in the manner of appointing electors [and that] it is thus within a state's authority to impose a fine on electors for failing to uphold their pledge."

My prediction that the Court will grant the petition and hear the case is based not only on the fact that this is a pretty important question of constitutional law, but on the existence of a clear split of authority on the matter. As some of you may recall, several months ago the 10th Circuit invalidated a Colorado statute similar in purpose and effect to Washington's (see my blog posting about this case here), and regardless of one's views on the merits, it is clearly intolerable to have different interpretations of core constitutional provisions in different parts of the country.  Moreover, as we stress in our amicus brief, this question could well recur in the context of a dispute over the outcome of a presidential election, and the Court is surely better able to assess and weigh the complicated constitutional arguments on both sides without the intense time pressure (see Bush v. Gore) such a dispute would invariably involve.

One of the things that makes this such a fascinating constitutional question—at least, in my eyes—is the disparity between our long-standing practice regarding the operation of the "Electoral College" and the original constitutional scheme. While we have come to regard the electors as performing a purely formal function—a "kabuki democracy"-style ceremonial ratification the results of the presidential election—it is hard to deny that the Framers had something very different in mind. As Justice Jackson put it some time ago:

"No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, is 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." Ray v. Blair, 343 US 214, 232 (1952).

Or as Chief Justice Fuller put it in 1892:

"Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the chief executive, but … in relation to the independence of the electors, the original expectation may be said to have been frustrated. Macpherson v. Blacker, 146 US 1, 36 (1892).

Hamilton's Federalist No. 68 is the primary, though hardly the only, support for this view of the "original expectation" of the Framers. Hamilton stressed the importance of having the president elected by "men most capable of analyzing the qualities adapted to the station," noting that a "small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation."

As we put it in our amicus brief:

From the framing and ratification of the Constitution through the early elections, the ratification of the Twelfth Amendment, the adoption of the Twenty-Third Amendment, and Congress's consistent acceptance and counting of anomalous electoral votes, historical evidence shows that the Framers and every Congress to consider the question understood the Constitution as empowering electors to "vote according to their best judgment and discernment."

It was expected, in short, that these electors would actually elect a president—not merely ratify the results of an election by others. This was part of the Constitution's remarkable, and remarkably ingenious, method of diffracting the power to appoint officers of the new federal government by distributing that power to different bodies of electors. The "People of the several States" would choose Members of the House of Representatives, Art. I Sec. 2; the members of the State legislatures would choose Senators, Art. I Sec. 3**; and a third body, composed of presidential electors who would be appointed by each State "in such Manner as the Legislature thereof may direct," would choose the President and Vice-President. Art. II Sec. 1 and Amend. XII.

**The method of Senatorial appointment has, of course, been modified by the 17th Amendment, providing for popular election. No such modification, however, has changed the terms of the presidential election scheme.

It hasn't functioned that way in a long time, because the States have all chosen to use their power and authority over elector appointment in a more-or-less uniform manner**: all States appoint electors named by the political party of the candidate receiving the highest number of votes in the State, winner-take-all. The political parties, in turn, can be relied upon to name individuals who will—and almost always do—cast their ballot for their party's nominee.

**Maine and Nebraska have slight variations on this scheme, irrelevant to the issues raised in this suit.]

Nobody questions the constitutional authority of the States to appoint electors in this fashion. The question, though, is whether States can require electors, once they have been appointed, to cast their ballot in any particular way by subjecting them to punishment if they act otherwise.

Personally, I think the 10th Circuit got this one right, and the Washington Supreme Court got it wrong: the electors are performing a federal function, and the seminal case of McCullough v. Maryland stands for the proposition that the Supremacy Clause disables the States from interfering with their performance of those federal functions.  The States' (undisputed) power to appoint electors, in other words, does not give States the power to control their activity once they have been appointed and have begun to perform their federal function as electors.

Another interesting feature of this case is the way that the petitioners' position could garner support from Justices who take different approaches to constitutional interpretation. Strict originalists may be persuaded that the Framers clearly intended for electors to retain a discretionary role at odds with Washington's actions here; at the same time, Justices who are perhaps more comfortable with Justice Marshall's view of the need for broader protection for the instrumentalities of federal power against State encroachment may also not want to countenance Washington's interference with an institution—the Electoral College—so central to the function and composition of the federal government.

And if the Court were to follow the 10th Circuit's lead (and mine!) and invalidate Washington's actions on Supremacy Clause grounds, what then?

That's hard to say.  In the short term, there may be little effect on the presidential election process, inasmuch as the States will continue to rely on the political parties to nominate electors, and those electors will likely continue to act in accordance with party directives, not because they're afraid of being fined were they to do otherwise but because they support their party's nominee and were chosen by the party precisely on that basis.

But over the longer term, a decision in petitioner's favor could have deeper and more long-lasting implications. We could, perhaps, find ourselves with something more closely resembling the Framers original scheme, where electors actually take it upon themselves to choose the person best fit for the office of president.

On the other hand, Harvard law professor Lawrence Lessig, who is representing the petitioners in this case, points to other possible outcomes. In an interview with Adam Liptak in the NY Times, Lessig said that:

"… a decision in [petitioners'] favor could help focus public attention on the shortcomings of the Electoral College in reflecting the popular will. One response, Lessig said, is the National Popular Vote plan, under which states agree to grant their electoral votes to the candidate who gets the most votes nationwide…. It could also convince both sides that it is finally time to step up and modify the Constitution to address this underlying problem.  One possibility, he said, is a constitutional amendment requiring a proportional allocation of electoral votes at the state level."

Either way, it's a pretty consequential change in our electoral system.

And, though it is not relevant to the disposition of this case, I must say that I think we'd be a lot better off with Colin Powell as our Chief Executive than the one we actually have.

NEXT: The Judge and the Suspiciously Dead Grandfather

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  1. If I felt Post was arguing in good faith, I’d say Not the Worst Post Ever.

    But the last sentence gives it away, he wants Trump electors to be able defect if needed in 2020.


    Worst Post Ever.

    1. Bob from Ohio: It’s not “bad faith” to suggest that a system allowing elector discretion might be preferable to the one we have, and using as evidence that fact that such a scheme might have given us Colin Powell instead of Donald Trump. And perhaps you should have noticed, in your rush to get your comment first in the queue, that the petitioners in this case defected from Hillary Clinton, not Trump. So I would respectfully suggest you don’t know what you’re talking about.

      1. “perhaps you should have noticed”

        I did notice. Its irrelevant to your anti-Trump animus.

        If you had not done so many spittle filled anti-Trump posts in the last month, perhaps I would credit you some good faith. Alas.

        1. Anti-Trump man bad.

      2. Anyone who believes Colin Powell is preferably to Donald Trump is presumptively foolish, or drunk, or both.

        1. …or has a brain. Or a conscience. Or a shred of integrity.

          (Silly internet games are always more fun when both sides can play.)

          1. Yeah, well I guess then you can explain why, on any level, politically or constutionally, Colin Powell is to be preferred over the candidate who actually won a majority of states. I doubt you can muster anything beyond a smug, hypocritical insult, but who knows? Stranger things have happened.

            1. Do you know what a hypothetical is?

              1. Really don’t think somebody with zero understanding of the law or legal reasoning has any business offering his own obnoxious comments here although that’s never stopped you in the past. Are you sure you wouldn’t feel more at home in some sewer twitter feed?

                1. What makes you think I have zero understanding of the law or legal reasoning?

                  1. Based on your history of comments, you don’t know how to read case law. And we might also point to your nonsensical “hypothetical” comment above. What does that even mean? Of course the election of Colin Powell by faithless electors is a hypothetical but this was the silly hypothetical circumstance posited about. A silly hypothetical I was challenging. But you simply are unable to grasp this.

                    1. You take issue with the premise of the hypothetical. That’s fine, if you state you’re doing so. You don’t; just plow along in.

                      Anyhow, I did quite well in law school and practice, but thanks for your concern.

                    2. Uh huh. I’m sure you did. Well, at any rate, it’s good to have a vivid imagination.

      3. They defected from Hillary hoping it would induce some Trump electors to defect too.

        Don’t pretend it was an anti-Hillary strategem, she had already lost, it was an anti-Trump hail Mary.

        1. Or blind idealism. Because that’s a thing Dems indulge in as well.

          The marshaling of paranoia in order to maintain the required purely negative view of Post is not pretty.

          1. The marshaling of paranoia in order to maintain the required purely negative view

            Don’t be so hard on yourself. I promise the bad orange man will be gone by January 2025.

            Until then you’ll just have to enjoy sustained economic growth and a chief executive who doesn’t use the intelligence agencies to spy on a political rival.

            1. Yeah, Trump’s managed not to screw up the trends started in the Obama administration yet.

              But to get on topic, it’s remarkable how many commenters thought it vital to speculate about Post’s real liberal agenda behind a post that seemed to align with their partisan interests.

              Gotta keep your villians pure!

            2. You prefer bribing Ukrainians (with taxpayer funds) to go after a political rival, you bigoted, half-educated, disaffected, vanquished clinger?

              Open wider, jubilant.

        2. That was why electors were encouraged to defect, but none of the Trump electors did so, only Hillary electors. I tend to think it was some kind of idealism on their part, not just a tactical effort to encourage Trump electors to defect.

          Because, defecting from your preferred candidate to encourage the opposing candidate’s electors to defect would only work if you could somehow get more of them than you to defect, which was never plausible.

          1. But it was at least plausible that enough would defect to throw it to the House, which would deadlock resulting in a a Ryan presidency.

            Unlikely, but just plausible.

      4. And, though it is not relevant to the disposition of this case, I must say that I think we’d be a lot better off with Colin Powell as our Chief Executive than the one we actually have.

        It was this sentence that spoiled an otherwise excellent article, Professor Post.

        But I think the Constitution allows for ‘faithless electors’ to be quite honest. I contend the Founders have the electoral college as a check against the people (as you wrote). The Founders themselves had quite a dim view of democracy.

        I personally think the NPV scheme is unconstitutional.

        1. The Constitution clearly anticipated the electors exercising discretion. There’s literally no point in it being a position occupied by a human being except the exercise of discretion. Without discretion, the Constitution would have assigned to state legislatures the task of choosing who got the votes, not people who would vote.

          But I think the NPV scheme would be constitutional with Congressional approval. The Constitution does permit interstate compacts, but it requires them to be approved by Congress.

          1. But would it be enforceable?

            Based on who is joining it the most likely first result would be California giving their votes to a Republican – because it’s disproportionately blue states who want it, thinking it’s essentially an end run around the electoral college they only have to make once, and piecemeal, and surreptitiously. While a constitutional amendment would be anything but surreptitious.

            1. “Would it be enforceable?”

              Probably not. They’d still have to appoint electors. And what the electors did…well, that’s a different question. Assuming a close election where a Democrat loses the popular vote, but wins the electoral vote, if a state’s electors “choose” to go with the winner of the electoral vote in their state, well, is the state really going to prosecute them for it?

              1. If the Republican candidate wins the national popular vote, the NPV Compact requires California to choose the slate of electors pledged to the Republican candidate. It would be a major surprise if any of those electors, let alone enough to change the outcome of the election, decided to vote for the Democrat because California voted for the Democrat.

                1. Why would it be a surprise? We’ve already seen multiple faithless electors in the 2016 election.

                  If California voted for the Democrat, perhaps the electors would feel obligated to vote for the Democrat, regardless of what the national vote was. I mean the electors represent CA, not the nation. And especially if it was a “reprehensible” candidate like Trump, and it might sway a close election.

                  1. The electors pledged to the Republican candidate were chosen by the state Republican party. While we have seen a few faithless electors who choose non candidates, is the party so inept at choosing electors that one of them is going to vote for the Democrat?

    2. Your take implies that you want just the opposite, but only because you think Trump would lose electors. That in turn implies you would be happy for Hillary, or Lizzie, or Bernie, to lose electors.

    3. Sadly, I agree; He just had to go there, didn’t he?

      1. Mustn’t upset Bob and Brent, David! No exposing them to opinions they disagree with!

      2. Yeah, I have to agree too.

        So, it’s a reasonable post. I don’t entirely agree with the arguments, but that’s fair. But then with one line at the end, he has to reference Trump, and “Trump Bad”.

        And it influences and biases the entire argument. It should be a non-partisan argument. But consciously or not, with one line, David makes it partisan, and it colors the entire thing. It’s not about the legal or logical arguments anymore but about “what hurts Trump”. And that’s what makes it a bad post.

    4. Oh. I was going to say that this was a sign that the weird obsession has lost its deathgrip. Maybe it’s only loosening a little.

  2. Regardless of the framers envisioned, what they expressed in text that the state legislature direct the manner of appointment as it saw fit. There is no evidence that they intended to constrain the legislators to ensure that the electors acted independently.

    1. If the framers envisioned the electors as exercising independent judgement it follows that their decision can’t be constrained by the states and the popular vote therein

      1. What the framers “envisioned” doesn’t determine what the states can do. What the framers actually wrote does. (Or are you going to concede that interstate commerce is limited to actual movement across state lines and doesn’t include the manufacture of goods that move across those lines, and that pornography and flag-burning can be forbidden by law?)

    2. So a state could imprison any federal senator who voted in a way the state disliked?

      “Any federal Senator who fails to vote in accordance with the directive of the Governor is guilty of felony malfeasance against the state, and their recorded vote is the sole evidence required to convict. Assenting to an unrecorded vote is also complete proof of this crime. The penalty is death.”

      That would be fine? After all, there’s no express constraint on how the States ensure their Senators vote the way they want, right?

      This seems to be to be one of those things inherent in the federal nature – one government cannot criminalize what another expressly authorizes.

      1. Article I does expressly immunize members of congress for their official actions during the session. There is no equivalent immunity for presidential electors in Article II.

        1. Accepting that covers state law (and I sure hope that’s never been adjudicated!) the easy solution is to add a contract under oath and charge perjury.

          “You swore you’d do what we told you too, you didn’t, so we’re charging you with lying.” It’s not what they did in Congress after all, it’s the lying to the legislature that’s the charge. And since the process is the punishment even if each variation gets overturned you can just keep swapping in new versions.

  3. Interesting. There were four electors that bailed on Clinton. One voted for Faith Spotted Eagle.

  4. “It could also convince both sides that it is finally time to step up and modify the Constitution to address this underlying problem.”

    Given that the underlying problem is that the more populous states enticed the less populous states into an irrevocable political compact by promising them disproportional representation in some instances, I’m not sure why the less populous states would want to fix this “problem”.

    1. “Fix problem”=amend constitution so that one party can acquire permanent electoral majority sooner than expected

      1. AKA “be careful what you wish for”

        It’s literally old-school conservatism at play (not to be confused with modern application.) There is wisdom in long-standing and hard-wrought tradition, and it should be changed only after careful consideration.

        And specifically, not because you lost an election.

        As I’ve said on several issues, it’s like Indy is pointing his bazooka at the Arc of the Covenant, and the bad guy says, “Go ahead, Dr. Jones. Blow it up. We are just passing through history. This (points at Arc)…this is history.”

        Indy backs down because all the current world’s problems scarcely show up on the radar of millenia, and how offensive to do such great violence for a transient problem.

        So don’t wreck the Constitution, designed to keep away tyrant kings for centuries, for a quick political gain.

    2. As coders say, “it’s not a bug, it’s a feature.”
      I’d also not that awarding electoral votes in proportion to the popular vote would also diminish the impact of very populous states as long as the number of electoral votes awarded must be an integer.
      The argument is left as an exercise for the student.

      1. But the National Popular Vote proposal is not to award them in proportion. That protocol is to award all of the votes to whoever ekes out the margin, however small.

        The only states that could theoretically “benefit” from the fact that electoral votes must be an integer are those states whose population most exactly matches the number of bodies necessary to qualify for an additional representative. And that would only be at the expense of those states whose population falls just short of the threshold for another representative. Size of the state doesn’t play into it.

        (Small states do get a benefit because electoral votes are allocated as the sum of senators and representatives. The National Popular Vote proposal does not change that skewing. Evidence from the allocation of campaign time to small states also suggests that the skewing is miniscule in effect. Ohio has 18 electoral votes to Maine’s 3. Ohio gets far more than six times Maine’s campaign attention and spend.)

        1. But if electors are free to vote for whoever, why does the popular vote mean anything, compact or not? Couldn’t they vote for Colin Powell anyway, even if Trump (or anyone else) wins 45 states?

          1. 1 I do think there are some limits. While the electors are free to choose among any of the candidates, I don’t think they can write in just anyone (I could be wrong).

            2. Think about the following scenario. Note: If I remember correctly this actually happened in the 19th century, but I don’t recall which election right now and I’m too lazy to try and look it up.

            Strong third party that manages to win some electors. Three way split in the electoral college no candidate has enough electors to outright win. Third Party candidate has no chance of being selected by the house, So the electors for that candidate get together and decide which of the other two candidates is the lesser of two evils, throw their votes to that candidate giving that candidate a clear win in the EC and keeping the election from going to the House.

          2. As David Post said, each party chooses slates of electors to be appointed in the event that the statewide vote goes to that party’s candidate. The party has every incentive to only choose electors that will be loyal to the party and its nominee. The faithless electors that we have had over the years end up being rebels because the almost ceremonial function of electors has meant that they get added to the slate because of past service, for the ‘honor’ of voting in the EC, etc., rather than because they have been carefully vetted for support for the party’s nominee.

            I would expect faithless electors to become less common if the SCOTUS rules that they can’t be constrained to vote for a specific candidate. The parties would up the level of scrutiny of their slates of electors should the ruling go that way.

  5. Article II, Section 1, of the Constitution says: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ….” In other words, the Constitution says that the Legislatures of the several States get to decide how the Electors are appointed. Having those electors chosen in accordance with votes cast for presidential candidates by voters is how the Legislatures of the several States have decided how the Electors are appointed, in accordance with what the Constitution actually says.

    The names of candidates for presidential elector did not appear on my ballot. The names of candidates for President did. At least implicit in that method is that, by voting for a presidential candidate, I was voting for electors who had promised to vote for the presidential candidate for whom I had voted. If they vote for someone else, they breach their implicit promise to me. It seems a lot like fraud. The proper punishment for that fraud is tar and feathers, not a fine.

    The alternative to the vote by the Electors being a ceremonial ritual is my vote being a meaningless gesture.

    1. In the context of a presidential election the original understanding of the constitution indicates that your vote can be a meaningless gesture if the electors so choose. Deal or advocate for an amendment.

      I happen to think it’s a better system than pure popular vote democracy

      1. Or we can vote directly for electors, not presidential candidates.

    2. Your complaint should be with your state defrauding you, not the electors, by hiding the law in a basement bathroom in the bottom of a cabinet behind a door that said “beware of leopard.”

      Your state is the one who has the esoteric laws that a vote for “President Giant Douche” is instead a vote to delegate the choice of electors to the registered party of Douche, rather than to anyone in particular.

    3. It’s quite telling that you’d attempt to quote the Constitution to prove your point, and then leave out the sentences immediately after your point which prove you to be completely and utterly wrong.

      State legislatures are permitted to determine how an Elector is appointed. The authority STOPS right there.

      The Constitution continues to make it clear immediately afterwards, that the Electors and the votes they cast are separate. How do we know this? Because it says “The Electors shall meet in their respective States, and vote by Ballot for two Persons.” When legal documents use different words, it’s presumed they’re used because the words are not synonymous.

      Therefore, State legislatures are free to determine how Electors are appointed, but are not permitted to control for whom they vote.

      Your argument also ignores the basic definition of “to vote.”

      This is no different than attempting to claim that the State can mail you YOUR ballot, already filled-out, and thank you for your ‘vote.’

      As for your ‘vote’ for President, it is in fact meaningless, and always has been. You should get used to that fact, because it hasn’t changed in over 200 years. It’s about time you caught up to reality.

      1. As for your ‘vote’ for President, it is in fact meaningless, and always has been. You should get used to that fact, because it hasn’t changed in over 200 years.

        Are you suggesting that the Legislature of my State has not changed the Manner in which Electors from my State are appointed “in over 200 years”? Are you suggesting that the Legislature of my State lacks the authority to make my ‘vote’ play some small part in the Manner in which Electors from my State are appointed? Are you suggesting that the Legislature lacks the authority to prescribe a punishment for fraud?

        1. I’m suggesting that you’re ignorant of what “appointed” means.

          Electors are people. Electors are not the votes they cast. Votes require someone to be permitted to make a choice. When a State is granted authority to “determine how ELECTORS are appointed,” that is not synonymous with “determine how VOTES are ALLOCATED.”

          It’s simple fucking English, dude.

          1. I’m suggesting that you’re ignorant of what “appointed” means.

            I asked:

            1. Are you suggesting that the Legislature of my State has not changed the Manner in which Electors from my State are appointed “in over 200 years”?
            2. Are you suggesting that the Legislature of my State lacks the authority to make my ‘vote’ play some small part in the Manner in which Electors from my State are appointed?
            3. Are you suggesting that the Legislature lacks the authority to prescribe a punishment for fraud?

            Is that your answer to those questions?

          2. It’s simple fucking English, dude.

            Pardon the interruption, “dude,” but would you be kind enough to explain the difference between “simple English” and “simple fucking English”?

  6. To me, laws that purport to invalidate and replace the votes of faithless electors are clearly unconstitutional. The Constitution provides a time for electors to vote and doesn’t allow for any after the fact revisions. Laws that punish faithless electors are different. It could be as simple as a contractual relationship and breach of that contract – the state is selected electors on the basis of criteria (or, in reality, candidates or parties are doing so and states have provided mechanisms for precisely this) and one of those criteria could be a willingness of the elector to sign an agreement to vote a certain way and to submit to any penalty agreed to for failure to do so. It’s not any different than how repeating classified information is protected under the First Amendment but leaking that information when you obtained it as part of your clearance can be criminalized.

    1. Interesting. But the terms of the contract can’t be so coercive as to diminish the role of the electors originally envisioned. The possible terms of the state’s contract are bound by respect for that original role.

      So maybe a (usually manageable, at least to those likely to be electors) $1000 fine expresses the states disapproval of faithless electors—and maybe provides a disincentive—but perhaps larger fines, forfeitures or surely imprisonment would cross the line.

    2. I’d agree with this, and this is what makes the court cases different. The Supreme Court has already ruled that you can have a pledge to support a candidate as a condition for being chosen as an elector. Once the elector is chosen, they can vote as they wish. The state can’t take that back. But if they break their pledge, there may be penalties.

      1. But political pledges aren’t enforceable, so what penalty could there possibly be?

        I suggest upthread that the commitment be in the form of a sworn statement under penalty of perjury, with that being the penalty for the faithless elector and their ultimate votes deviation from the prior testimony of how they’ll vote the evidence. Rebuttable, of course, but that out to work – then the prosecution is for lying, not for how they vote.

        1. The penalty for perjury is a proxy for being faithless. If it is unconstitutional to be punished for being faithless, then it ought to be likewise unconstitutional to be punished for a proxy.

        2. That depends. Is an elector’s pledge a “political pledge” or is it a verbal contract? There’s considerable debate there.

          You might consider it a “political pledge”. But often, it’s not an elector voted for, but the pledge. In addition, electors don’t campaign, don’t make promises to the public, and don’t have a political role beyond the single vote they make. I can see a court saying that it’s a verbal promise, not a “political pledge”, and regardless of the historical meaning, the current day usage is that it’s a verbal promise.

          1. Well, the state could punish for false pretenses/fraud in the inducement. That might hinge on whether at the time of pledge the elector intended to vote for someone else, or with the intention that they would vote for anyone they wanted to instead of intending to keep the pledge. The state could certainly punish for bribery to change their vote. I don’t see how punishment for the last one could plausibly be unconstitutional, so it seems to me that the constitution cannot be deemed to confer absolute immunity for exercising the federal function.

  7. Voting for a candidate to be president is not how it actually works. When you vote for a candidate, you’re actually voting for the electors the party has selected in a batch. This is what most states have decided to do. There are states where the electors themselves appear on the ballot and states where you have to specify electors if you write in a name.

    1. Apparently if other people reply and start new threads, a reply will get bumped into its own thread. That’s some weird programming.

  8. Resolving this issue now, rather than later, is important not just because of the influences of time pressures as we saw in Bush v Gore but also to enable the court to decide the matter without being perceived as being politicized.

    At this point, no matter what the court’s decision is, it would be difficult to assert that the court reached the conclusion in this case to benefit one party over the other as the decision in this case would not call into question the results of any election. It is also really impossible for Justices to predict how their decision in this case could impact future elections and which parties/candidates would benefit so it’s difficult to say that they factored that into their decision.

    If the fundamental factors on which Bush v Gore was decided had already been decided years earlier in the context of a case involving which candidate won the City Dog Catcher office in Freeport, Kansas (population 5), the decision would not been as strongly perceived as being the result of politics vs. law.

    1. Which is why I join the Professor in hoping the Court picks this case up and decides it. Either way I find morally acceptable – you committed to doing something and then didn’t is the essence of breach of contract opposed to we picked you because by stating a party you indicated how you thought about things going in but if you change your mind between November and December that’s why we picked you to exercise your legitimate judgement for us.

      I prefer the second – electors can do whatever they want under their own moral obligation to execute their mandate. So (to use a hyperbolic scenario) if a Trump II elector learns that he’s really a Russian spy such that they have no doubts they should be not only free to vote against him, but morally obligated to do so over the prior vote of the people they represent who didn’t have that information.

      Of course I’d prefer the way the founders described it in the Constitution, where the “presidential election” was to pick the people who you thought would be the best at picking an effective manager, and then leave it to them to sort through who should be drafted to do it. Then the presidential elections become “I have lots of experience in hiring great CEOs” rather than “Abortions for some, miniature American flags for others!” But that’s not how it ever actually worked, and we have no evidence it would actually work well, so that’s just daydreaming.

  9. I don’t think either way really matters that much practically, but it’s best dealt with by Congress amending the Constitution to specify whichever way they decide. Even if the court makes a decision there’s no real reason it couldn’t be decided differently later, which is the same problem I have with Obergefell (gay marriage should be legal, but Congress should pass legislation so that it isn’t just an SC decision).

    In any case, it should be done so that it only applies after the current and next election, whenever that decision is made.

    1. Agreed in Obergefell, which leaves open the option for a state to simply say “we don’t issue marriage licenses anymore, nor do we recognize them for any purpose, but if you’re raising children we have a standard child rearing contract that sets out rights and responsibilities”

      Obergefell got the right answer only because states were treating people similarly situated differently (and states should knock that off), but a state that didn’t want “gay marriage” could have gotten the same result by getting out if the marriage business and only issuing standards for child rearing – it would hit 80%+ if the original audience, and almost no homosexual relationships.

      That suggests that we aren’t thinking about the problem the right way, if a state can’t do A because it’s discriminatory, but can do B even if it gets almost identical effects (including the discriminatory part) then we probably haven’t thought about why A is wrong in the proper context.

      1. The idea of states getting out of the marriage business is simply not going to happen anywhere. There are too many legal rights and privileges that come along with marriage besides raising children for any majority to ever agree to do away with it, regardless of their feelings on gay marriage.

        People may whine and complain about how gays getting married somehow “ruins” the sanctity of their own marriages, but since there is no actual harm to them, they’ll settle down to grumbling about it, cheer on the occasional cake baker that fights anti-discrimination laws on religious grounds, and otherwise do nothing.

        1. Losing the culture war and being replaced consequent to their stale bigotry seems distinguishable from “nothing.”

  10. I assert that is the will of the people that I punch Lessig in the nose. Will he accept the will of the people in that case?

  11. It’s hard to imagine an easier way to precipitate a crisis of electoral legitimacy than to signal to electors that they can do whatever they want.

    Doubtless, Post is correct that our system in practice has strayed far from the system in principle originally envisioned. But that’s kind of my point. It is very hard to “fix” one aspect of an interlocking system to conform to original understanding, while leaving the rest in place. I can’t imagine anyone actually believes it would be a good idea to have electors actually campaigning in a satellite races orbiting those of major party candidates. Yet that is precisely what would emerge from a national decision investing the electors with actual, rather than symbolic power.

    Never one to let a (potential) crisis go to waste, Lessig uses the opportunity to pitch the NPV. I’m against that, but that’s for another day. But it’s a little weird to suggest that the case for the NPV is strengthened by a (potential) SCOTUS decision that unnecessarily creates problems with the EC that are largely distinct from the peculiar type of counter-majoritarian federalism the EC occasionally makes possible.

    1. But the thought of ending the circus called electing a president is so very tempting.

    2. Since we in fact have such a system, why shouldn’t citizens choose the electors they are voting for based on knowledge about those electors?

  12. We all know why there’s an even a discussion about this (you mentioned it yourself, NPV) and I cannot help but laugh at how NPV supporters think it will more accurately reflect the popular will. It reflects the will of the statistical majority of voters, which is not necessarily popular or even a majority of the nation. We already know that about ~25% of the nation decides what the other 75% will do. We already have a means for the popular will to be expressed and that’s called an amendment.

    1. Uh…and the electoral college does, somehow, represent the popular will? How does that work?

      1. That’s the red herring. You think that Presidential elections are somehow supposed to represent the popular will and that the popular will is a good thing.

    2. So the popular vote somehow does not represent the will of the voters?

      I look forward to hearing your explanation.

      1. Only in the sense that the term “will of the voters” is one designed to mislead in this context.

        Most of the time we think of the class of people subject to the rules (I.e. everyone), then break that into eligible voters (and sometimes argue that 16 year olds or felons should be eligible), and then break that down into actual voters (and sometimes argue about those who have weak preferences and so chose not to vote), and from this get a final vote tally that we think of as representing the aggregate preference of everyone who was competent enough to vote and had an actual difference of preference in who won.

        And if that’s what the presidential national popular vote was that might be interesting.

        But in our current system there’s another class – those who are effectively disenfranchised not because of their personal circumstances (voter registration, ID, time off work, travel, etc) but because of systemic barriers to exclude their votes. And it just so happens that NPV Compact states have more (on average) of these systemic barriers, making the popular vote totals from those states suspect.

        California is a good example of this – only because it has both the size for complexity to arise, and because it has lots of systemic barriers. The State has a large Democrat majority, so you would expect that would hold true for all elected offices. But it’s not true for statewide offices – instead nearly every statewide office is held by a Democrat, far outside of the distribution seen in other states with similar partisan splits. Part of that is because in CA primaries there’s a mechanism that ensures that only the top two total vote recipients can ultimately be elected – so a Republican in CA may see a ballot with exactly zero candidates from her party, even though many candidates ran in the election. This suppressed minority-voter turnout knowing that they cannot obtain their desired electoral outcome – not that it’s unlikely, but that CA has structured the vote so that it’s impossible.

        In a presidential election if you know your state has effectively disenfranchised you through structures, and your state as a whole will vote against your desired president, you simply have no reason to vote at all – and neither do any likeminded people, because your votes cannot matter even in the aggregate.

        This necessarily results in not just suppressed votes, but a bias in the suppression, making an aggregate of those biased votes not representative of people who would vote, but only of those who did not have their votes suppressed.

        Does the unsuppressed popular vote total track what an actual aggregate vote total would? We don’t know, and can’t know unless we remove the structural impossibilities to voters in the places that block their votes from mattering.

    3. With regard to popular support, the cool thing about NPV is that it is always better than the alternative.

      1. As a wolf that’s what I keep telling the sheep……

      2. Electoral college is like democracy and free markets; we know it’s not perfect, but it’s the best available.

        Larger states already have an advantage in the HoR. Smaller states already have an advantage in the Senate. The EC is a hybrid system that gives more voting power per citizen to smaller states, but still allows the largest populations to overwhelmingly influence elections.

        Go ahead and tell me why the Midwest shouldn’t secede if NPV is permitted. They literally don’t have a vote at that point.

    4. In response to the three above comments, there is no “will of the people”, at best there is a consent of the governed. That “will of the people” is a Rousseauvian conceit and is most commonly employed by fascists inflaming mob passions might tell you something.

  13. Agree with Professor Post that the 10th Circuit got it correct.

    The practice of deceiving citizen-voters by creating a false impression that they are voting for actual presidential candidates rather than electors, to the point of often not even telling them the names of the candidates for elector that they are actually voting for, is a fiction that greatly diminishes the limited power citizens actually possess under the constitution to have a say in the matter.

    Hopefully this case will have the salient effect of ending the fiction. If state legislatures choose to involve citizens in the process of appointing presidential electors, which of course they don’t have to, then citizens ought to be able to decide on candidates for elector knowing who those candidates actually are. Citizens have a right to know more about who they are actually voting for than the just the one fact that they signed a pro-forma, completely worthless and unenforcible, pledge to vote for a particular presidential candidate.

    1. Seems like you’re begging the question a bit. If the Washington Supreme Court is right, and states can compel their electors to vote the way they’re supposed, doesn’t that mean that their pled isn’t” completely worthless and unenforcible” — and thus that the identity of the presidential candidate the elector is required to vote for is more significant than the identity of the elector?

      1. Not at all. Since, as I said, David Post and he 10th Circuit is right, it follows that the Washington Supreme Court is wrong. Otherwise States would have similar powers to direct votes for electors to other offices, like House of Representatives.

    2. Forgotten in all this discussion is the fact that there’s no constitutional requirement for any state to conduct a popular vote for the office of President. Just that the legislature designate some way to appoint electors.

  14. My problem with Washington’s decision is simple. Under the unamended Constitution the state legislatures had the absolute authority to appoint the Senators of the state. Does anyone really think they could fine or punish a Senator who didn’t vote the way they wanted?

    1. Article I expressly immunizes senators from punishment for their legislative actions. Article II contains no equivalent protection for electors.

  15. So, supposing Congress has officially certified the electoral count – can the courts go behind that certification and say that some votes Congress considered valid were invalid or vice versa?

    1. Per the enrolled bill doctrine, which I assume applies to that certification, too, no. You could have absolute proof the certification was a lie cooked up by McConnell and Pelosi, and the Court would stick its fingers in its ears and recite, “Neener, neener!”

  16. A disadvantage of leaving electors free to vote as they please is that it creates a dangerously compact locus for corruption, with potentially gigantic implications. Where else in the system is there any comparably dangerous vulnerability?

    1. Party nominations are far more corrupt than anything that can happen to an elector.

      And if the party is choosing their electors, and the state appoints them based on the winner, what is really the likelihood of corruption?

    2. Congress.

    3. How does this differ from the House or the Senate?

      1. How does this differ from the House or the Senate?

        In the way that the President of the United States differs from a congressman.

    4. But doesn’t this danger arise primarily from the fact that the very identities of candidates for elector are concealed from the voters who vote for them, with voters not merely encouraged not to pay any attention to them, but often actively prevented from doing so. It is this concealment that creates the opportunity for fraud.

      If Instead of everything operating behind closed doors, voters had information about electors that would enable them to evaluate how likely are to keep their campaign promises and/or exercise their discretion, and gave them attention and scrutiny consistent with the importance of their roles, this sunshine would greatly refuce the potential for corruption.

  17. Since Maine and Nebraska are mentioned, I think that’s the way every state ought do it. Win the Congressional District, get the elector for that district pledged to you. Win the state, get the two for the state.

    But we do need more congresscritters, and therefore, electors. (NY Population)/(Wyoming population)=34. NY had only 27 congresscritters because the house has been unconstitutionally limited to 435 members, and not been increased as required to meet the words of the 14th Amendment section 2: Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed Most states, therefore, are underrepresented in the lower chamber.

    1. Not sure how the 435 is unconstitutional, though I agree it’s smaller than would be useful.

      Proportionate is just in relation to each other – they’ll never be at the exact right ratio until we go to universal voting on legislation.

      1. Proportional means proportional – if you have a pie with 8 pieces, even unevenly sliced, you can’t share it among 9 people. Two ways to get proportionality in the House – Divide the 50 state population by the smallest state population, or the better way, divide each states population by the smallest state population.

        1. TX, CA, NY, IL, FL, VA, PA and other states with substantial sanctuary populations should probably get docked some reps, never mind getting more.

  18. I personally favor Maine and Nebraska’s system as being more Democratic, yet still faithful to the Constitution.

    1. Likewise. Though I favor it as more democratic. If it were more Democratic, I’d have doubts about it.

      1. Puts a whole new spin on the motivation to gerrymander though.

    2. As things stand now, Republicans win the House if they lose the nationwide popular vote by no more than five percentage points because of a combination of gerrymandering and a higher concentration of Democratic voters in some districts (those that are largely African American or urban, college-educated whites).

      Do we really want a system where the President wins even though he lost the popular vote by five percentage points?

      How about instead each state awards their electoral votes proportionally based on the statewide popular vote, with a minimum threshold (15%?) for getting any electoral votes? This plan would not require a constitutional amendment.

      1. Some states have chosen to do so already. Others have not. So your plan is implemented to the extent that agreement between the states can currently be achieved.

        1. No states currently allocate their electoral college votes proportionately.

          1. That’s correct, they don’t. And if you bother to actually read the Constitution, Amendments 14 and 24 clearly state citizens of a STATE have the right to vote for electors. In 48 states you vote for a full slate; in Maine and Nebraska you vote for one from your Congressional District, and two for your state. You know, if you want to, who you actually voted for.

            In a proportional system- Who did you vote for? There’s no way to find out. You’ve been effectively denied the right to vote for the electors of your choice. Maybe you wanted your friend elector #12, but proportional says only 11.

            The NPV Compact is even more unconstitutional. Pretty much whoever dominates CA and NY wins the election and gets the electoral votes, not matter who you or the fellow citizens of your state voted for. You’ve been denied the right to vote for electors.

            1. I suspect the overwhelming number of voters have no idea who the electors are. They are voting for the candidate the electors pledged to vote for. But even if they did know and wanted to vote specifically for elector #12, the Constitution does not require the states to allow a voter to vote specifically for elector #12.

              In the NPV Compact, every voter has the same impact as every other voter. A voter in Wyoming has the same impact as a voter in California. So, I don’t see how you conclude that California voters get to decide who wins while Wyoming voters do not.

              1. Because people don’t vote in a vacuum. A single California voter has as little influence as a single Wyoming voter under NPV, but California decides because even if California is closely contested (ex. 51/49 D/R), California is so populous that states like Wyoming will have to cover a multi-million vote disparity to change the outcome. Protip: they don’t have the population to do this. No state does.

      2. Yes, yes we do. Because no amount of disparity, no amount of population density in the same 4-5 urban areas should EVER be used as an excuse to eliminate Midwest and rural Americans who lead substantially different lives and need representation more than anyone to combat their smaller numbers.

        1. Taken to its logical extreme, the smaller the minority that leads different a “different life”–say, the homeless or billionaires–the bigger voting power they should have. I’m not convinced the electoral college should go, but I’m not sure that arguing that a minority of the population, simply by reason of being a minority, ought to have disproportionate power, is persuasive. I look at it more as the interests of units of self-government, rather than the interests of a particular “way of life” that ought to have outsize influence. There are some situations where units of government should be viewed as relatively equal, and others where size should matter. Certainly that was the notion of the framers, and the reason for the compromise.

  19. Good piece of content thanks for sharing.

  20. I think when we look at original intent sometimes you have to unfortunately acknowledge that the Federal government has already morphed into an overblown monster that is basically unconstitutional. The Federal government was never meant be so powerful and thus important.

    The intent of the constitution was that most of the power remained with the states and God forbid the individual. But leftists over the last 250 years have whittled away constant using some snippets, “common good”, “commerce clause” of the constitution to do whatever they want.

    FFS the 16A was needed just to establish a federal income tax. Nowadays its accepted that the Feds can levy any tax they wish.

    So TDS afflicted folks like Professor Post twisting around what electors can and can’t do was not so much of a worry. You gave yourself away. I guess this is a further feature of the “Insurance Policy” in case Trump wins in 2020. Unfaithful electors?

    I’ll fix your article for you. You didn’t have enough time , Trump V Clinton, to put in place an insurance policy to overturn the election if it turned out the “wrong” way. Can’t let that happening in 2020 now can we.

    1. Yeah, the post Civil War era resulted in a re-founding somewhat.

      Doesn’t mean anything nowadays is unconstitutional because they wouldn’t have liked it in 1776 nor that the Founders and their wisdom should be completely discarded.

      1. The founders also gave us the tool to address the defects discovered over time. However, Govt-Barbie says amendments are hard, let’s just go court shopping!

        1. Considering where these cases end up, court shopping seems a pretty ridiculous charge.

          Anyhow, what you think the law ought to be doesn’t define what the law is.
          The Constitutionally recognized authorities disagree with you about where one would need an amendment. I know the right loves to do so, but assuming bad faith in the Supreme Court because government isn’t your preferred size is just letting your preferences author your reality.

          1. I place limited faith in an institution that delivered Dred Scott before the war and Plessy afterwards (just as two notable points of failure). Nor that our political solutions are inarguably better; after all we did get an amendment enabling Prohibition.

            1. Yeah, the Supreme Court hasn’t been perfect, as they themselves acknowledge. Doesn’t mean you get to replace their judgment with your own.

              Or doesn’t mean you can and be taken seriously.

              I heard VA is gonna ratify ERA, which should be interesting.

      2. Well, no, I don’t think anybody (Well, not many anyway.) is claiming things today are unconstitutional simply “because they wouldn’t have liked it in 1776”.

        But most of the Constitution was written in 1787. And, of course, they wrote it according to their view of what a good constitution should be, not ours. To the extent it hasn’t been amended, it still embodies their idea of what should and shouldn’t be constitutional.

        And many things the federal government does today are unconstitutional, not because they violate the opinions of the founders, but because they violate the constitution the founders wrote, which is still, at least nominally, in force.

        Of course, such opinions of theirs that didn’t get written into the Constitution are just that, opinions, and nothing more.

        1. The 14th Amendment fundamentally shifted the relationships between the federal government and the states, increasing the responsibilities of the former a great deal.

          Additionally, there is no evidence that rulemaking would have been unconstitutional; it just wasn’t needed at the time.
          I mean, military staffs weren’t even a thing at the time.

          Just because it’s a new demand on government doesn’t mean it’s unconstitutional.

          Certainly a formalist/textualist like you should note the lack of any text forbidding a bunch of the stuff you think is unconstitutional.

          1. A formalist/textualist like myself would note that, per the 10th amendment, what you are looking for is not an absence of text forbidding, but the presence of text permitting.

            With the 10th amendment, silence is NOT permission, where the federal government is concerned.

            1. So you don’t think the creation is within ‘the legislative power’ nor is the operation within the ‘executive power?’ Because those are pretty broad ambits as written.

            2. Cites:

              Article III: ‘All legislative Powers herein granted shall be vested in a Congress of the United States…’
              Section 8: ‘provide for the common defence and general Welfare…of the United States’

              Art. II: ‘The executive Power shall be vested in a President of the United States of America…’

              1. Sarcastr0,

                What “creation” or “operation” are you referring to?

                1. Administrative agencies. Based on past conversations, that’s the subtext of what most of these commenters think is unconstitutional.

              2. Re: your Sec. 8 snippet, do you read into that a general police power?

                1. No. As that could have been the case in the 1800s and wasn’t.
                  On the other hand, the administrative state is a modern invention and neccessity.

          2. “The 14th Amendment fundamentally shifted the relationships between the federal government and the states”

            Yes although its original meaning was not even close to such a large shift as we’ve had to date, it seems to me.

            1. Seems to you. But doesn’t seem to the Supreme Court, on both sides of the aisle.

              Even originalists debate this. On this very blog even!

    2. “The intent of the constitution was that most of the power remained with the states and God forbid the individual.”

      You ever hear of the Articles of Confederation?

      The AoC were in effect for seven years (1781 – 1788), so plenty of time to let it work.

      It didn’t then and it won’t now.

      1. Well, yes, the Articles of Confederation didn’t work, and maybe the Constitution even overshot the ideal in correcting that, but the more powerful government the Constitution set up is practically a state of anarchy compared to what we have today.

        1. Well, a few things have changed in the past 230 (or so) years.

          We’ve grown from 13 states (facing powerful European and indigenous forces).
          We’re a global power with global reach.
          Life has become a tad more complicated (commerce, finances, communication, transportation, environmental stewardship, etc.).
          Law has become more sophisticated.
          Values have changed.

          The govt we had in 1789 or even 1889, can’t handle the demands of the 21st century.

          1. What’s structurally different such that a government of 1889 wouldn’t work?

            In 1889 we had: mass global wars, standing armies, instant communications (Telegraph), investment banking, environmental problems, rampant changes in technology, and many more.

            I’ll also disagree that laws became more sophisticated. They got longer, but I disagree that complicated and sophisticated are the same thing, and think that’s hubris to think so. The Trump admins recent rule making in immigrants needing to fund healthcare is a great example – the addition of the Affordable Care Act shifted the Public Charge clause (from 1882 no less) to include healthcare – which I’ll bet no one anticipated when the ACA was passed. It’s the right answer – but not because the law is sophisticated, but because it’s so convoluted it took a decade to realize that was a downstream change.

            1. What’s structurally different such that a government of 1889 wouldn’t work?

              Urban nation, instead of a rural one.

              Present public unwillingness to institutionalize discrimination against blacks, and less present support for government sponsored theft of land from blacks and Indians.

              Everything about immigration.

              Chemistry, and its implications.

              Physics, and its implications.

              Biology, and its implications.

              Atomic warfare. Ballistic missiles.

              Mass personal surveillance, automated.

              Corporate organization empowered by data processing.

              Totally different, and far more complex, media structure.

              Lots of stuff like that. Government in 1889 could not cope with any of it.

              1. I don’t know where this mindset comes from, but do you really think the founders and politicians since then devised policies thinking that nothing ever changes and that principles aren’t future proof? You basically just identified things that didn’t exist in 1889, not whether or not the principles and systems of 1889 could actually address those items were they to have existed in 1889.

  21. Currently virtually no voter knows who the Electors are; each voter makes a judgment on two or maybe three individuals.
    Under the “free agent theory” of Electors:
    1. It would be incumbent on each voter to know the voting intentions and reliability of each of a great many electors.
    2. The voter could if he chooses vote for (let’s say) 12 Clinton electors and 8 Trump electors or any combination thereof.
    3. Despite the presidential race having been between Clinton and Trump (in my example) the Electors are not bound by who actually has been nominated, campaigned, and ran for the office…they could install Colin Powell, or Brad Pitt, or literally any otherwise-constitutionally qualified individual, for the Presidency. Their prior promises and commitments are by definition unenforceable.
    4. The Electors, or any of them, could openly sell their vote, either for an ambassadorship or for cash, or for any other reason.
    Is this really the system that this writer is advocating, or claiming that such was the Founders’ intention?
    As for the National Popular Vote, wait till there are six candidates and the Electors are required to install a Perot or George Wallace type individual who won with a plurality of say 27% of the vote.

    1. Well, I don’t think the selling their votes part was any part of the Founders intention. But the deciding amongst themselves part? Absolutely.

      That’s what the electors were supposed to be chosen to do: Get together and pick a good President. I don’t think the founders even anticipated people campaigning for President, (Washington didn’t.) they were more than a little naive about how the system they were setting up would work in practice, you know.

      1. There seems to be no historical evidence of the “deciding amongst themselves” part. From the first contested election in in 1796, Electors (whether appointed by their respective state legislatures or put in by state-wide popular vote) all voted for the guy (Adams or Jefferson in that election) for whom they had been elected or appointed. They didn’t get together and pick, say, Hamilton, let alone voting for the opposition candidate. And of course the Founding Fathers were all still around. The presumption from the get-go was that the Electors, however chosen, were performing a ministerial act.

        1. Not at first it wasn’t a ministerial act. That it defaulted to that pretty quickly wasn’t because that was the intent, but because legislatures pre-determined the outcome they wanted and only sent those they agreed with.

          This is one bit of history that could have gone another way very easily.

          1. You mean “defaulted immediately to, despite what I’m claiming was the original intention”. Unless you can come up with an instance of any early elector doing that, ever.
            Look, I certainly can agree that the language of the Constitution leaves a gap for the “faithless Elector”. Perhaps that was because the drafters thought that the problem was just too remote. But there is simply no evidence, after the presidential election had been run and the votes counted, the Electors were then to assemble in solemn synod and select basically whomever (whoever?) they felt like, and that moreover such a solemn assembly and off-the-reservation selection was the original intent of the founders

            1. There is a great deal of evidence. As the 10th circuit noted, the 12 Amendment used terms like “Electors,” “vote,” and “ballot,” the same words the original Constitution used for electors for the House of Reperesentatives and the 17th Amendment later used for electors for the senate.

              If state legislatures can direct whom electors for president will vote for or punish them for their votes, why couldn’t they do the same thing for electors for the House of Representatives and the Senate?

  22. Bottom line is that we have spent 200 years subverting the constitutions main theme which was a limited federal government predominantly based on mutual defense and free trade between the states (what the commerce clause is actually about) and reinforcing basic rights through the Bill of Rights

    10A which leaves all else to the states or the people has been run over by a bull dozer

    The NPV is unconstitutional since it end arounds the electoral college which is explicitly stated in the constitution to prevent large states from imposing their will on smaller states. If you don’t like it AMEND the constitution. It’s hard. That’s a feature not a bug,

    No instead we get more subversive and find an Obama judge to invent something to justify unconstitutional laws and behavior.

  23. Just look at the Democratic platform. I’m having a hard time finding free college and free healthcare in the constitution maybe Prof Post can find it.

    Abortion , can’t find it. Oh wait Roe v Wade what a beaut of illogic that was.

    Special classes of people based on race and sexual orientation that you can’t offend and must bake custom cakes for. Can’t find that either. Seems like a violation of 14A which after approval has been revised by the courts to be just about slavery until we added it to be just about that and gay marriage. That’s so we can still tear folks unequal if they are not “special “ if we wish.

    This discussion about electors being politicized and voting for Daffy Duck and NPV is just a continuation.

    Sorry Ben we couldn’t keep it

    1. Not sure which U.S. Constitution you’re looking at but the one I see has a Preamble which describes the purpose of the document and the Federal Government, and includes things like general Welfare, domestic Tranquility, etc.

      Seems like abortion, gay marriage, etc, fit quite nicely under those headings.

    2. Article I of the Constitution says

      “The Congress shall have power to lay and collect Taxes, Duties, Imposts, and Excises, to pay the debts and provide for the common Defense and general Welfare of the United States…”

      You might not personally think that spending on education and health care is spending on “general welfare.” But that’s your personal political opinion. The term is clearly broad enough to cover it. Courts have long held, since the 19th century, that education and healthcare are part of the “welfare” element of government power. What spending is appropriate for general welfare and what isn’t, how much taxing is appropriate and how much too much, are political questions to be decided by Congress, not by the courts.

  24. I find it amusing that one argues that States cannot control electors yet expect that States can control electors under NPV!

    Talk about an oxymoron!!!

    1. An excellent point.

    2. I don’t believe NPV Compact supporters have taken any position on whether states can control electors. The merely want states to appoint electors who have pledged to support the candidate that won the national popular vote.

  25. The people believe, rightly so in my view, they are voting for presidential candidates, not electors. In order to match what the people rightly believe and reality, at the very least we need a constitutional amendment to make the electoral college math automatic without any electors.

    1. Which is the way to do it, of course. Amendment Nth, “The electoral college is stricken. All citizens will vote by state directly for President with the proportional power of the number of Representatives and Senators to each State.”

      That could be tidied up, but something along those lines.

  26. Along with being a racist, Colin Powell’s advice stopping the advance in the 1st Gulf War ultimately STILL has us over there — SCREW HIM!

  27. Electing the President based on the National Popular Vote is inconsistent with state control over elections. The fatal flaw with the NPV as it is currently proposed is that it would aggregate votes from different states with radically different rules as to the time, place, manner and eligibility to vote. The resulting aggregation of apples, oranges and other random assorted fruit would not be mathematically meaningful. The only way for any NPV to work would be to have the exact same rules in every state for the Presidential election. In other words a true Federal election.

    1. kramartini, how does the electoral college fix that? Seems like to avoid all your objections applying alike, you have to discount to zero the popular vote as an election input. Is that your intention—to make the popular vote pure window dressing, while electing the President by other means entirely?

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