The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The folks over at Scotusblog have organized an online symposium (available here) focused on the two "faithless elector" cases—Chiafalo v. Washington and Colorado v. Baca—and my submission to the symposium ("Constitutional Doctrine and Political Reality in the Faithless Elector Cases") is posted here. Oral argument is now set for May 13 (with live audio to be provided to the public, I'm told). [For general background, see my earlier postings on the cases here and here].
I've puzzled over these cases a good deal over the past several years. Michael Rosin and I submitted amicus briefs at the appellate stage, and to the Supreme Court at the cert and merits stage, in both cases. And as I've thought more about them, I've had something of a change of heart about what the Court should do.
At bottom, the cases are pretty simple. Hillary Clinton won a plurality of the popular vote in Washington and Colorado in 2016. WA and CO law required each of its presidential electors to cast their electoral ballots for her. Several electors in each state did not to do so, voting instead for Colin Powell (WA) and John Kasich (CO). In CO, these so-called "faithless electors" were removed from their positions by the CO Attorney General before the final tally was taken and replaced with others who cast their ballots as directed; in WA, the electors were each fined $1000.
The issue in the cases is whether states may try to control the conduct of their electors by punishing them for acting contrary to their instructions. [Whether Congress may do so or not is a trickier question, and one not before the Court.]
I remain of the opinion [as expressed here and here] that the electors have the better of the constitutional argument. States have absolute constitutional authority to appoint electors however they wish; but once electors have been appointed, they are federal government officials, performing a federal government function, and states may not interfere with the performance of federal functions by federal officials.
But having said that, I doubt that we will be well-served, now, by a Supreme Court opinion to that effect. "Supreme Court to Electors: Vote as You Please" is not a headline that I hope to see at a time when our political institutions are under the strain that they are under. As I put it in the Scotusblog essay:
This strikes me as a singularly inopportune moment for the Court to be entering this fray. Not only are we in the midst of a social and economic crisis of unprecedented magnitude, but the final stage of a presidential campaign that is likely to be unusually bitter and contentious is about to begin. Constitutional doctrine and constitutional history may weigh heavily, as I believe they do, in the electors' favor here. But affirming the electors' independence from state control now – giving our political system no real opportunity to digest and adjust to the news before the next presidential election is upon us – strikes me as unwise. We have muddled through without clarification on this question for 200 years; another one won't kill us.
The pandemic gives the Court the opportunity to move this case, as it has moved a number of other cases, onto next year's calendar. I'm very sorry it hasn't – yet – seized it.