The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As I predicted here, on Friday the Supreme Court granted certiorari in two consolidated cases (Chiafalo v. Washington (10th Cir.) and Colorado v. Baca (CO Supreme Court)) raising a significant question of constitutional law that the Court has never squarely addressed before: whether the Constitution, which expressly grants plenary power to the individual States to appoint presidential electors (Art. II sec. 1), permits those States to direct presidential electors to vote for a specific presidential candidate and to enforce those directions via ex post punishment, or whether, conversely, electors have a constitutionally-guaranteed right to use their discretion in deciding who to vote for.
Historian Michael Rosin and I, ably assisted by Michael Donofrio and Bridget Asay of the Stris & Maher law firm in Montpelier VT, submitted an amicus brief urging the Court to grant cert [available here], as well as amicus briefs on the merits in both of the cases at the appellate stage [available here].
So I'm naturally delighted that the Court agreed to take on the two cases. With the presidential election of 2020 looming just over the horizon, and given all of the attention, good and bad, that the Electoral College scheme has gotten over the past few years, it is, clearly, a question of some importance.
Our briefs have focused on a single, narrow point: that while we all have come to regard presidential electors as performing a purely formal, ministerial function—a "kabuki democracy"-style ceremonial ratification of 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 (in dicta) 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).
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."
The original scheme, in short, contemplated that presidential electors would actually elect the president—not merely ratify the results of an election by others. This was part of the Constitution's remarkable, and remarkably ingenious, method of diffusing and diffracting the power to select 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).
That scheme has been altered, of course, by express constitutional amendment: the 17th Amendment, providing for popular election of Senators. But no such modification has altered the express terms of the presidential election scheme.
I've never been particularly skilled at predicting how Justices will vote on particular matters, and I'll spare you my predictions here. One of the fascinating aspects of these cases is how difficult it is to situate the issue presented on some simplistic left-right spectrum. There's an originalism/living constitutionalism axis; strict originalists at the Court may find the evidence of the historical understanding of the electors' role persuasive, or even dispositive, while others more on the steady evolution over time of practices derogating from the original scheme. And there's a federalism axis; some Justices might be receptive to the argument, which has roots in John Marshall's opinion in the seminal case of McCullough v. Maryland, that because electors are performing a federal function, the Supremacy Clause disables the States from interfering with their performance of those functions, which others may believe that it is important to buttress the states' role in the presidential electoral process.
And if the Court were to follow the 10th Circuit's lead (and mine!) and uphold the principle of State non-interference in elector actions, what then? Will it actually change the manner in which we elect our presidents?
I'll have more to say about all that as we get closer to a decision.