Do We Really Need the Supreme Court to Decide the "Faithless Elector" Cases Now?

The Court could have, and probably should have, pushed these cases over to the 2020-21 Term

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.

Comments

[RobinGoodfellow]

David,

IANAL, but isn’t it better to resolve this situation now instead of after the November election?

I don’t agree that this a “singularly inopportune time”. Why will post-election US be more opportune than now? The economy may be worse, we may see a second wave of Covid-19, and a few faithless electors may cast the 2020 election into huge disarray.

[theobromophile]

Agree. Things tend to be less contentious when people know the rules in advance.

[loki13]

"Why will post-election US be more opportune than now? The economy may be worse, we may see a second wave of Covid-19, and a few faithless electors may cast the 2020 election into huge disarray."

If SCOTUS says, as Prof. Post fears, that "Supreme Court to Electors: Vote as You Please," that may increase uncertainty and doubt about the election .... after the election occurs, given the jockeying that very well might occur and the complete destruction of norms that has occurred.

[Noscitur a sociis]

But isn't the current message—vote as you choose in the 10th circuit, do what you're told in Washington, and figure it out for yourself everywhere else—even worse?

[Patrick Henry, the 2nd]

Who cares. The court nor us should be worried about such things.

And in fact, that situation is exactly how electors were to be designed for!!

Let the court settle it.

[Krayt]

I assumed "after the election" meant after the electors voted as well, not in-between, which would be even worse.

[Real Books]

"We have through without clarification on this question for 200 years; another one won't kill us."

We had more faithless electors in 2016 than from 1900-2012 combined. Would voters accept an election being decided by some number of faithless voters?

In all states we cast ballot for electors committed to specific candidates. If we want to go back to legislatures choosing electors, so be it. If we want to vote for uncommitted electors voting their conscience, so be it. But do it above board.

[Jason Cavanaugh]

I strongly encourage you to learn about the Constitution and the election process before commenting again.

[bernard11]

What an absurdity.

Leaving aside what one thinks of the EC, if we're going to have it then surely we don't need actual electors trooping to their state capitals to cast their votes, or do whatever mischief occurs to them.

Why in the world can't we just tabulate the electoral votes without deliberately creating the possibility of a completely avoidable crisis?

[Tilted]

We can’t just tabulate the electoral votes because the Constitution lays out a different way of doing things. State legislatures decide how presidential electors are appointed, and those presidential electors vote for President and Vice President.

If we think that’s an absurd way of doing it, we’re free to amend the Constitution. That’s how we (should) decide that something required by the Constitution is, e.g., absurd or too archaic or otherwise just bad. But heretofore, apparently, there hasn’t been sufficient consensus that we shouldn’t be doing it the way the Constitution currently prescribes.

[Bob from Ohio]

Must be worried about defecting Biden voters wary of the inevitable 25th Amendment crisis in 1 or 2 years.

[santamonica811]

You're making a great case for Biden selecting Barack Obama as his VP...then resigning at some point after he enters office, and Obama gets nearly an entire third term, neatly sidestepping that pesky 22nd Amendment.

#NewFoxNewsConspiracyTheory

[Bob from Ohio]

You have to be eligible for election to President to be elected as VP.

[santamonica811]

What does what you wrote have to do with right-wing fevered conspiracy theories? Biden trying to do that is, at least, more reasonable and plausible than Hillary Clinton engaging in the sex trade via pizza restaurants.

[Brett Bellmore]

Not to defend the Pizzagate conspiracy theories, (Which were loony, but no more loony than Rotherham in the UK, and that happened.) but Biden attempting a stunt like that would require cooperation from a lot more people than just running a pedophile ring out of a pizza parlor would.

[Leo Marvin]

Where's your "Worst Post Ever?" Is there nothing left we can rely on?

[Bob from Ohio]

I have sadly fallen away from the old ways.

[David Post]

What a pity. 🙂
DGP

[David Nieporent]

Must be worried about defecting Biden voters wary of the inevitable 25th Amendment crisis in 1 or 2 years.

What crisis? I've been reliably informed that any attempt to make sure the president is fit for office constitutes a "coup."

[ReaderY]

The case should be decided now.

Regardless of what one thinks the outcome should be, both the public and prospective electors should have a clear understanding of what their rights and duties are and what both a citizen casting a ballot for elector and an elector casting a ballot for president actually means.

The Supreme Court should decide this case now, before the outcome of the next election depends on their decision. The worst possible outcome would be if the Supreme Court made a rushed decision in late December which, if the outcome of the election depended on it, would be open to criticism as partisan and a political decision rather than a legal one, and could undermine confidence in both the outcome of the election and the integrity of the judiciary.

The time for people to know what their ballot means is before they cast it, not afterwards. It is clear rules specified in advance about how ballots must be counted that prevent Stalin’s adage, that he doesn’t care who casts the ballots, only who counts them, from applying to this country.

Clarity is essential to legitimacy. Clarity here is a value in and of itself, independent of which way you think the court should decide.

[Stephen Lathrop]

ReaderY, that is a good comment. You do not want a situation where the Supreme Court gets a look at the vote, and then decides, in effect, whether or not to endorse or overturn the outcome before it becomes final. No matter what the Court chose to do, that pickle would not be one the Court could escape without damage to its legitimacy.

[Lee Moore]

I agree with Reader Y. David Post's argument boils down to :

"it would be better if :

(a) any court decision about faithless electors were to take place not in advance of the election, but right when the Presidential election result is being potentially changed by the behavior of faithless electors, or States responses to such behavior, and

(b) electors should feel at some risk of punishment for exercising their rights sunder the constitution, even though I agree that any such punishment would be unconstitutional"

This is nuts. Though in fairness it's the first effort I recall seeing from David Post that is not awash with spittons full of TDS phlegm. If Post is beginning to recover, then great, and maybe he can free up a hyperventilator for someone else.

I should mention in passing that the notion that there is no time for states to adjust their rules should they feel the need is emphatically denied by one of the two major parties, which is lobbying hard for wholesale changes to electoral law in advance of this year's election.

The solution lies in the hands of the candidates and their state parties. Only put up candidates as electors who you are confident will toe the party line.

[Krayt]

There's also the issue where it smacks of changing the counting rules after the people vote, which, if it has any different effect at all, causes failure in the election process and the faith in it that it is not being manipulated.

Change the rules if desired, but in-between elctions, not after The People vote and before the votes are counted. They ran into this in 2000 with trying to redifine what counted as a hanging chad to make one candidate get more votes.

[Eddy]

I don't know about criminal punishment of electors, but certainly it seems up to Congress to decide what is a legitimate electoral vote and to decide what result to certify. It's my understanding that Congress already certified the 2016 election results, including the number of electoral votes for each candidate.

So, if the question is whether to count those votes for Kasich, etc., or whether to count votes for Hillary instead, then I'd say leave it to Congress. It's hardly an infallible tribunal, but look at the alternative.

We could have people litigating an election indefinitely!

[ReaderY]

The Washington electors were subjected to adverse judgments and fines for conduct they claim they have a constitutional tight to do. They have unequivocal standing challenge those judgements and fines independent of what Congress did.

I think that the Colorado electors also have standing because they allege their right to hold the office they were elected to by the people if Colorado was unconstitutionally taken away from them. But even if this is debatable, the standing of the Washington electors, who were personally punished and subjected to monetary fines, is not.

[Eddy]

For all I know, the Court may find a way to let the electors cast their vote without being punished, while leaving it to Congress to decide whether to count the vote.

[Krayt]

I think I'd rather have faithless electors have buckets of poop dumped on them than have Congress decide to ignore their votes.

[Eddy]

Maybe so, but the actual alternative to Congress deciding - with the risks that they will decide wrongly - is to have Congressional certification subject to appeals and collateral attacks in the courts.

[Brett Bellmore]

It's best to have it decided up front, before we know whose electors were unfaithful. It promotes a more impartial, disinterested consideration of the matter, and helps at least reduce claims of partisan motive.

"Whether Congress may do so or not is a trickier question, and one not before the Court."

The electors are at least appointed in the manner dictated by state legislatures, which gives the legislatures at least SOME hook for claiming authority. What basis at all for claiming authority over them would Congress have?

[Commenter_XY]

Professor Post, I think the timing is singularly irrelevant. I really do.

Why? Simple. The die for November 2020 has been cast. There are damned few undecided voters, from where I sit. SCOTUS saying that Electors have the capacity for independent judgment, and cannot be punished for exercising it, won't change a thing.

The bottom line is SCOTUS made an affirmative choice to hear the cases.

[Tilted]

I think there’s reasonable argument to be had on a lot of constitutional questions. But I don’t see how this is one of them. The Constitution says that the presidential electors vote for President and Vice-President. Doesn’t voting mean deciding who (or what) to cast your vote for?

Maybe it doesn’t in some contexts, and maybe this is one such context. But then, what about the 17th Amendment? Does it not require states to let voters decide who will be their Senators? I mean, does it only require states to let qualified electors elect their Senators - but still leave those states free to decide which candidates those electors will choose? For that matter, the 17th says that each Senator shall have one vote. Are states still free to decide how each Senator will vote?

What about the 15th, 19th, 24th and 26th Amendments? States can’t deny you the right to vote based on your race, sex, or age (if you’re over 18), but they can still deny you the right to decide who to vote for based on those things? They can’t make you pay a poll tax to vote, but they can make you pay a poll tax to be allowed to decide who to vote for?

It seems to me that the right (or empowerment) to vote means the right (or empowerment) to decide who to vote for, not just the right (or empowerment) to cast a vote for the person some other entity decided you had to cast your vote for.

[Brett Bellmore]

Oh, I agree: The idea behind the EC was that the state legislatures would appoint the electors, who being a small group of respected and highly informed individuals, would then discuss among themselves and pick the President. Their deciding for themselves who to vote for was the whole point!

Turning the EC into a pseudo-popular voted weighted in a funky way was never intended, but it's certainly within the (basically unlimited) discretion of the state legislatures to pick the electors based on who they commit to vote for in advance.

But the constitutional case for the states to be able to enforce that commitment is pretty dubious. Should call for a constitutional amendment, not statute.

This is, of course, separate from whether the Supreme court should decide the case before or after the election. It's always best to decide these things before you know what the political result of deciding this way or that will be.

[Krayt]

Ya got no veto, nobody cares about who is president, and the two super-parties fracture back into regional and single-issue parties ala parliamentary systems.

[Ilya Shlyakhter]

"respected and highly informed individuals... deciding for themselves who to vote for was the whole point" -- but how can today's electors, chosen not for being "respected and highly informed" but for their pledge to _not_ decide for themselves, draw authority from that "whole point"?

[Mark Leen]

For better or worse, Hillary Clinton won a majority of the popular vote in Washington in 2016. She won a plurality in Colorado.

[Rossami]

So you think the electors have the better argument but that this is the wrong time to say so, right? When exactly do you think would be an "opportune moment" to rule for the electors?

In some ways, this is like the right to Free Speech. It doesn't need defending when everyone agrees with what you say. It is only needed when the decision is unpopular. If the electors are right, they are right now and the Supreme Court should say so now. And if they're wrong, the Supreme Court should say that as well. Delaying until the "opportune moment" is a guarantee that such a moment will never occur.

[TwelveInchPianist]

The fact that so many folks on the left want the court to hold off on deciding the case makes me wonder if they really think that the court acted in bad faith in Bush v Gore.

[Brett Bellmore]

Maybe they think the decision won't be favorable to them before OR after, but that it's likely to be more easily impugned after the election.

[Lee Moore]

Off topic, this post forced me to glance at the 12th Amendment.

I recall a kerfuffle back in 2000 when it was claimed that Cheney was not really a resident of Wyoming but was really a resident of Texas like Bush, and I had assumed there was a rule against that, but without bothering to check the details.

But that's not quite what 12A says. It says a elector can't give both his vote for President and his vote for VP to someone who is resident in the same state as himself. Thus if Cheney had been a Texas resident, Texas electors couldn't vote for both Bush as P and Cheney as VP. Which would have made a difference since even if GOP Texas electors had voted for some other Republican as VP, no one would have got a majority of EVs for VP, and assuming strict party discipline the Senate would have split 50-50 with a casting vote for Al Gore - and Joe Lieberman would have finished up as Bush 43's VP.

But more generally the "can't have a P and VP from the same state" rule is actually limited in its effect to cases where you care about the electors in the state they're both from. Thus there's no reason why the GOP can't nominate P and VP candidates both from California, or the Dems can't nominate P and VP candidates from Alabama - they wouldn't be counting on any electoral votes from California or Alabama respectively anyway.

The other amusing 12A detail is that you have a two thirds quorum for a vote on VP. So the minority party can block if it wants, unless it's down to 33 Senators.

[Lee Moore]

On reflection I think I got Joe Lieberman wrong. 12A requires "a majority of the whole number [of Senators]" to elect a VP, so the casting vote of the current VP won't do.

[David Nieporent]

Thus there’s no reason why the GOP can’t nominate P and VP candidates both from California,

Because finding two Republicans in California right now seems implausible?

[California Dreamer]

There may be a compelling reason to decide the case now. COVID-19 is particularly lethal among persons over the age of 70. The presumptive nominees of both parties are septuagenarians. As a result, it is not inconceivable that either of them could become seriously ill or die after the election and before the electoral college votes. If that happens, electors will be particularly tempted to become "faithless electors." For that reason, if no other, it may be preferable to decide this case as soon as possible.

[Krayt]

I think that was the subject of a novel by Jeff Greenfield, as a warning.

[Ilya Shlyakhter]

Whatever the law, can we all agree there is no _moral_ justification for electors to break pledges? Electors whom we never vetted for the role of deciders have no moral right to assume that role.

[Krayt]

What happened to living constitutionalism where the changed attitudes of The People change the meaning? Clearly here The People don't want faithless electors, at least if it doesn't hurt their guy, so as they feel, so shall it be.

[Ilya Shlyakhter]

I'm specifically talking here about moral, rather than legal, aspect of this, so constitutionalism -- legal or dead -- isn't the right framework. What's the _moral_ justification for electors, chosen _solely_ for their pledge-keeping abilities (as opposed to for their decision-making abilities), to claim authority to be decision-makers?

[David Welker]

The argument being advanced here is that we are better off being ignorant regarding the correct interpretation of the Constitution? And that it is better that federal officials remain ignorant of their rights under the Constitution?

This is an extraordinary claim.