The Faithless Electors Case

Can a state control how a presidential elector votes?

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On Wednesday, the U.S. Supreme Court will hear oral arguments in two cases involving challenging the authority of the state to control how individual presidential electors cast their ballots when the Electoral College assembles in December. Both cases, one from Colorado and one from Washington, emerged from the 2016 presidential contest and the so-called Hamilton Electors movement that encouraged presidential electors to break their pledges and refuse to give Donald Trump the majority of the electoral votes that he had won when the general electorate had gone to the polls in November. The issue confronting the justices is novel, and political consequences are hard to predict but potentially significant.

I have noted before that I believe "the existence of living, breathing presidential electors is a dangerous flaw in the constitutional system that can create only mischief." The Hamilton Electors were playing with fire in lobbying their colleagues to overturn the presidential election results as determined by the popular ballot and in attempting to elevate some other individual to the White House based on their own personal judgment of who might best fulfill the duties of the office of the presidency.

They also badly misread our constitutional history. Although the Hamilton Electors were right that the framers in Philadelphia expected that the electors would cast independent ballots to determine the presidency, their constitutional design did not require that result and our constitutional practice immediately shifted to a system of pledged electors. Presidential electors as we know them are not the best men of the state who are uniquely informed about the quality of possible presidential candidates and entrusted by their states to evaluate potential candidates and endorse the most qualified. They are instead anonymous party apparatchiks who are unknown to the electorate and designated simply to mechanically perform an honorary task. Electors are required to pledge themselves to voting for a specific candidate for a reason, and we properly condemn those who break their pledge as "faithless."

The question before the Court is a narrow but potentially consequential one. Many state legislatures have tried to reinforce the significance of the presidential electors' pledge to support a specific candidate by putting in place statutory mechanisms to replace electors who can no longer be trusted to adhere to their pledge (Colorado) or sanction electors who broke their pledge (Washington). The Constitution simply specifies that presidential electors are chosen in a manner that the state legislature directs. The states argue that the Constitution does not prohibit the states from replacing electors or directing how they must conduct their duties, and so the states should be understood to have such powers. The electors argue that electors are not mere extensions of the state legislature and that the authority of the state ends once electors are chosen.

It might well be the case that the best course of action for the Court would be to dismiss the suits and vacate the rulings of the lower courts. The question of whether the ballot of a faithless elector should be counted might more properly be resolved in Congress, which is the institution charged with counting the votes and determining a winner of the presidential contest. These cases exist less as actual legal controversies than as artificially constructed vehicles for teasing out a judicial ruling on the contested constitutional question. The courts should generally decline such invitations.

The danger of the Court accepting the invitation to needlessly pontificate on this particular constitutional question is that the justices might only destabilize the workings of the constitutional system. There is a good case to be made that the states have exceeded their constitutional authority in claiming the power to regulate how presidential electors cast their ballots. The states have generally had the good sense not to try to enforce those regulations against faithless electors (and 2016 was unusual in that a set of presidential electors publicly announced beforehand that they intended to break their pledges, creating an unusual dilemma for state officials). It would be better if the states were to quietly repeal those statutes.

These state laws have not historically been an important force for reducing the incidence of faithless electors. Social pressure and careful vetting of prospective electors have been far more important to insuring that they generally adhere to their pledges. But if the Court were to publicly declare that the presidential electors are free agents, it might have the effect of shifting the political culture and encouraging future lobbying campaigns to influence the electors. It would be a disaster if presidential electors ever took it upon themselves to change the outcome of a presidential election (historically the electors pledged to losing candidates have been far more likely to go rogue than the electors pledged to winning candidates). The states might not have the constitutional authority to prevent presidential electors from casting their ballots for whomever they want, but presidential electors should understand the very limited and purely ceremonial nature of their role within our modern constitutional democracy.

The difficulty for the Court is how to get the Constitution right without encouraging more faithless electors. The best option might be to not say anything at all.

NEXT: "This President" v. "The Presidency"

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  1. My opinion of the electoral college has already been thoroughly aired so I won’t rehash it, but I flatly disagree with this post. If we are going to be straddled with the electoral college, then at bare minimum we need clearly defined rules for how it works. Especially in light of the interstate compact working its way through the state legislatures in which the states would agree to pledge their electors to whichever candidate won the popular vote.

    Whittington is right that it would be a disaster if an electoral college ever did go rogue and changed the outcome of a presidential election, but you know what? That’s the Constitution we were given. And if it resulted in the electoral college as an institution finally crashing and burning, well, somehow I would manage to contain my grief at the loss.

    1. “interstate compact”

      When did Congress approve this compact?

      1. Congress doesn’t need to approve it. The states are directing how their state electors are responding, so they are defining that their electors will vote for the candidate who won the popular vote.
        If sufficient numbers of states join the compact, then the winner of the popular vote will win the election.

        1. Perhaps Article I, Section 10, Clause 3 argues for congressional approval

          No state shall, without the consent of Congress, […] enter into any agreement or compact with another state

          1. Historically, though, this has only been interpreted to apply to compacts that would challenge federal prerogatives. Under that precedent, the NPV compact probably passes scrutiny. States have power to allocate their electors in any way the state legislature dictates, this is a way the state legislature dictates, QED.

            Though the 6 month blackout period prohibiting withdrawing right before Presidential elections might have some issues, since it purports to bind the state legislatures in an area where the Constitution clearly gives them plenary discretion. I’d say that’s the real Constitutional weak point, but it’s a weak point that doesn’t hinge on the lack of Congressional approval.

            1. This case is novel because the contracting states weaken the power of non-contracting states.

            2. I don’t see that as a weak point. The whole point of a contract is giving up rights so that you can acquire other rights.

    2. If the so-called “interstate compact” ever took effect, the faithless electors likely would find themselves in 50 fathom of water with a “lead line” (a string if lead weights) tied around their necks.

      This is what the left fails to understand — the right *will* get violent if the left cheats *enough*….

      1. Stick to making up fake anecdotes instead of cheering for violent sedition, okay?

        1. If Trump’s re-election is stolen from us, don’t expect us to go quietly into the night…

          1. So you’re entitled, as a matter of right, to have Trump re-elected? That’s not how it works.

          2. I’ve heard the same thing when the ACA passed, when Obama was reelected, when Trump was impeached…

            I actually do expect you to go quietly into the night, as you’ve done so many times before.

            Because deep down you know that’s not the election being stolen, even as you wail that it is.

            Being the aggrieved party is part of your self-image; being the initiator of violent action isn’t part of that narrative.

            1. Yup.

              And another point on that: The majority had the right to self governance stolen with the institution of the electoral college. The interstate compact is an attempt to take back the right of self governance that was stolen from the majority. So let’s be clear on who’s doing the stealing.

              I don’t know if the interstate compact will ultimately pass or not. Like the ERA, it may not be able to get the final few states that it needs. But if it does, it will be an expression of the will of the people that they want their self governance back.

              1. Yeah – the electoral college is nothing like it’s original intent, and I strain to find anything rendering that compact illegitimate other than that it hurts the GOP.

                1. I don’t know that it even “hurts” the GOP. It takes away from the GOP an unfair advantage it should never have had in the first place, which is not quite the same thing as hurting it.

  2. What happened to originalism?

    1. “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress”

      “in such manner as the Legislature thereof may direct”

      Would not originalism mean Colorado and Washington are well within their rights?

      1. I agree with Bob.

        It sounds to me as if the state legislature can clearly impose a requirement that electors pledge themselves to a specific candidate and be required to fulfill that pledge if they are elected.

        Of course the whole business of having actual electors is absurd, even more so than the EC itself.

        1. Unquestionably they can impose a requirement that the electors commit themselves in advance. The question is whether they can enforce that commitment after the fact, or it has to be on the honor system.

          I suppose the state legislature could require the electors to put up a bond, or something of that nature.

        2. What’s the alleged difference between Electors, and the electoral college?

          Hint: One of these things is a Constitutional construct. The other is made-up slang for the same thing.

          So having Electors cannot be more absurd than having the electoral college, unless apples are more absurd than apples?

      2. That depends on whether “appoint” includes the power to comply after the appointment?

      3. Bob, perhaps you should read the rest of the text.

        State legislatures may determine how Electors are appointed. AFTER appointment, Electors gather in their respective States to VOTE.

        Appointment is not a synonym for voting.

        It’s important to remember to read ALL the words, not just the ones you want to pretend prove you right.

      4. The President can nominate whomever he wants to for Supreme Court justice. So he can nominate someone who promises him to vote a particular way on a particular case. Nothing in the constitution prevents it. If a candidate thinks pledging in advance is unethical and won’t do it, the President can find someone else who will. His complete freedom to nominate whomever he wants however he wants means he can.

        But can the President force the Supreme Court justice, once appointed, to keep hos pledge?

        It should be clear that these are completely separate questions. Freedom of appointment, even complete and unfettered freedom of appointment, does not imply a power to control how the appointee behaves once in office.

    2. The original people [that wrote the thing] decided to run it like we do now, so…..what’s your question again?

      I think you mean textualism, btw, if you want to get picky.

  3. The part of me that enjoys chaos is looking forward to the day when the “interstate compact working its way along” is a done deal and we have 6 or 7 candidates running for president. Sort of like Italy. And the plurality winner gets about 32% of the vote.

    As for the rest, implicit in the originalism argument over faithless electors is that, if valid, we wouldn’t need political parties, candidates, or even a popular vote election. The electors (who at that point would concededly be known to greater than zero people) would assemble and vote for whomever. It wouldn’t have to be anyone that had campaigned, or that any portion of the population actually wanted, or even anyone who was interested in the job. Brad Pitt. Oprah. That lady who is the True Governor of Georgia…forget her name…Stacy Abrams. I suppose maybe you could restrict the electors from electing a Mike Bloomberg-type who would promise to give each of them $10,000,000…but constitutionally what would be the basis for even such a restriction? No, let’s just settle on requiring each state’s electors to cast their ballots for the winner of the state’s popular vote winner.

  4. “The danger of the Court accepting the invitation to needlessly pontificate on this particular constitutional question is that the justices might only destabilize the workings of the constitutional system.”

    That particular sentence, taken out of context, could apply to a whole lot of SCOTUS rulings.

  5. My prediction: Colorado’s law replacing electors who vote the wrong way will be overturned, but Washington’s imposing sanctions on such electors after the fact will be upheld. We shall see.

    The real question, with the talk this year of possibly canceling in-person elections in favor of mail-in voting, while the reliability of mail-in voting is still open to question, is this: what would happen if a state legislature decided to cancel a presidential election altogether, and instead appoint electors the way the Founders envisioned?

    1. By November, if we are in lockdown mode, I’ll eat my hat.

      The results are in, there was no surge of cases caused by either Illinois or Wisconsin, having their primary elections during the coronavirus pandemic. There is no solid medical justification for vote by mail in November. Plenty of political ones, to be sure.

      1. I expect a number of states to still be in lockdown by November, but as you say, purely for political reasons. Most of them should be back to something like business as usual by mid summer.

        It’s been evident for some time now that these lockdowns made no sense in most states, and even in the states where they did make sense, should have been restricted to densely populated areas.

        An approach that isolated the particularly vulnerable fraction of the population, (The elderly and those with severe preexisting conditions, basically.) and left everybody else to go about their business with extra hand washing and mask usage where needed, would have accomplished everything necessary, without remotely as much economic devastation. This disease just doesn’t have a particularly high mortality rate unless you’re elderly or otherwise in bad shape already, most people even into their 60s experience it as little more than a bad cold.

        Here’s some quick statistics from New York. Notice that even among the elderly, almost everybody who died had a preexisting condition.

        The percentage of the population who really needed to be quarantined for their own safety was probably only 5% or so, almost none of them gainfully employed anyway. The economic impact of a rational response to this illness could have been negligible.

        1. The 5% would have to be subject to much greater restrictions than all of us have undergone so far.

          1. Why? Make sure they understand the risks, and let them decide if they want to take them or not. Those who are not considered competent to evaluate what risks they want to take are already subject to substantial restrictions.

            1. Let me rephrase. They (*) would be forced into choosing between much greater restrictions and a greater risk of death than we currently have. Perhaps, that choice is not the right policy.

              (*) We would have accurately identify who “they” are. Those who are misidentified will not have even this choice.

        2. Well our expert Fox News epidemiologist has spoken. Bravo Brett. A+ for content. F for accuracy.

          1. Sweden has the same death rate as the US, yet has no real lockdown.

            1. Sweden’s death rate is 30% higher than the USA’s death rate. That being said, that comparison is not sufficient to draw any conclusion because other factors which differ between the two nations should be considered.

              1. Ah, I see the man on the radio was wrong, or I am misremembering what he said.

                1. Who is this man on the radio?

                  1. The man on 560 AM in the Chicago metro area at about 5:30pm or so today, as I was driving to Walgreens. I had to look him up, as I usually listen to 890 WGN if I listen to talk radio at all. Some guy named Steve Cortes https://560theanswer.com/

              2. Sweden’s death rate is 30% higher than the USA’s death rate.

                … and this is exactly what is to be expected right ? Before the goalposts were moved, the idea was to get the infection process over with while protecting the vulnerable. The area under the curves is the same, we are just flattening and causing it to last much longer. The whole point of the the deliberate Swedish choice of higher death rate is that they will be in the tail of the infection sooner with less economic disruption and their death rate will start declining long before ours with far less economic disruption

                1. The area under the curve is smaller with a smaller reproductive rate (R0), and social distancing reduces R0. What Sweden has argued is pressure to reopen the economy will be too great and thus smaller R0s cannot be maintained and the total deaths will end up the same.

                  The counter argument is twofold: 1) it is our choice as to how quickly to reopen the economy (perhaps we can find some middle ground as we carefully experiment in reopening, and 2) hopefully a combination of therapies and a vaccine will make death rates smaller even if the best we can do is delay infections.

            2. Sweden has a significantly higher death rate than the U.S., and a much higher death rate than its neighbors.

        3. Here’s some quick statistics from New York. Notice that even among the elderly, almost everybody who died had a preexisting condition.

          You’re no better at epidemiology than you are at law, Brett. But you’re good at spouting Fox talking points. “Preexisting condition” here doesn’t mean that they had stage 4 lung cancer and were on their deathbeds. It means that they’re ordinary Americans.

    2. Under what theory would a state not be able to replace an elector but nonetheless punish them for being faithless?

      1. The electors are selected, and they cast their votes. Votes cast by the designated electors have to count. As I understand it, Colorado decided after the electoral votes were cast that the electors who cast the “wrong” votes should be replaced. Doesn’t sound legit. A state law punishing them for violating their pledges doesn’t seem to me to cross the same line.

      2. The elector made a contract/pledge. The elector violated the contract/pledge. The law/vote/election selects an elector, who chooses someone. The choice is made. If the elector wants to suffer the consequences for breaking their contract, that’s their choice.

        1. To both Dan S and Armchair, isn’t it the Constitution which gives electors the right to cast a faithless vote? If that statement is correct, why then can states punish someone for exercising a constitutional right. By way of analogy, the states cannot punish people for buying guns or protesting because the punishment chills the exercise of the right.

          1. -“Isn’t it the Constitution which gives electors the right to cast a faithless vote?”
            -In essence, yes, it gives them the right to vote for who they choose.
            “If that statement is correct, why then can states punish someone for exercising a constitutional right”
            -Because they broke a contract.

            “By way of analogy…”
            I’ll make a contract with you. I’ll give you $300 to buy a certain type gun. You choose to buy a different type of gun. You’ve broken the contract, and I demand my money back. You’ve still bought the gun, but you should pay the penalty for breaking the contract.

            The state gives protesters a permit to protest at a certain time (noon) and place. The protesters choose to not abide by the terms of the permit, and protest at a different time (Midnight), thus disturbing the peace. The state can still arrest the protesters.

            1. I don’t have a constitutional right to buy a certain type of gun nor to protest at midnight.

        2. And a .30-06 to the head is the likely consequence where I’m from…

          1. You’re from the keyboard province of Blusterville, Idiotland?

          2. That the ones threatening violence are tools like you only makes me more sure the right will never rise up in anything more effective than that bird sanctuary fiasco.

    3. Ditto, that’s my feeling on the case

  6. “The difficulty for the Court is how to get the Constitution right without encouraging more faithless electors. The best option might be to not say anything at all.”

    I’d say the best way is to affirm that the responsibility for counting the electoral votes belongs to Congress, and their count cannot be questioned.

    For that reason, a court (federal or state) presuming to say how an elector should have voted would be taking away Congress’s prerogative.

  7. Basically,

    -faithless elector votes the wrong way

    -state govt replaces faithless elector with faithful elector who votes the right way

    -state govt certifies the electoral vote of that state

    -Congress can only overturn the state certification by a vote of both houses

    -The decision of Congress (to overturn or not to overturn the state count) is final

    -The courts should stay the *&^% out – no punishing electors for allegedly wrong votes because deciding which is the wrong vote is a job for Congress

    1. States who want to punish “faithless” electors are between Scylla and Charybdis – they can either have the courts make their own decision how the elector “should” have voted, thus encroaching on Congress, or they defer to Congress on how the elector should have voted, which deprives the elector/defendant of a decision by a jury on a pertinent part of the accusation against him.

      Therefore, either way you slice it, states can’t punish faithless (or allegedly faithless) electors

      Whew – what’s for dinner?

      1. (To be specific, an accused elector has the right to an individualized due-process hearing on the charge of wrongvoting, and if key facts in the case are decided by Congress in a vote-count where the elector as an individual has no due-process rights, then that would not satisfy due process. But for a court to make an independent determination of how the elector should have voted would step on Congress’s constitutional toes. Catch 22. Conclusion: Criminal or civil sanctions against an elector are not the way to resolve these sorts of disputes)

    2. Lets look at the implications of your argument. Congress also gets the final say on its membership. Suppose a state doesn’t like one of its senators’ votes and replaces him. Suppose the replacement better aligns with the Congressional majority. Is it for Congress alone to decide which one gets seated? Courts have no say? What about Powell v. McCormack?

      If an Elector is a federal office, like a member of Congress, states have no more authority to remove one because they don’t like the way he votes than they do to remove the other.

      The Constitution refers to “electors” for Senate. If a Secretary of State doesn’t like an “elector” for Senate votes, can he also simply have the vote nullified or have the “elector” replace with one who will vote for the “right” candidate? Is it up to Congress?

      What if the “elector” for Senate is black? OK to nullify the elector’s vote and it’s totally up to Congress to take any needed corrective action?

      1. “What about Powell v. McCormack?”

        It’s against my position, and I respond by saying it was a bad decision. Each house is to “judge” the qualifications of its members, the Supreme court reads that to mean be judge of matters of fact, leaving the federal courts with the power to overrule Congress on legal points. I argue, on the contrary, that each house judges both the law and the facts in cases involving members’ qualifications. But, yes, that precedent can be a wedge to usurp Congressional power in this and other areas.

        To clarify how Congress exercises its responsibility to count the votes, they passed the Electoral Count Act, allowing Congress to overrule the states if they refuse to certify black electors, etc. What if Congress decides wrong? Well, what if the Supreme Court decides wrong, in a matter reserved for final decision to the Supreme Court?

        So it is Congress, not the courts, which is responsible for counting the electoral votes, which includes the power of saying what the votes actually are.

        1. How to reconcile the Powell case with the [Walter] Nixon case? In that latter situation, the Court said it wouldn’t meddle with the Senate’s decision in impeachment trials, no, not even on matters of law.

          That’s a much better precedent for Congress as counter of electoral votes, if you ask me.

  8. Unfortunately for Keith, the text of the Constitution demonstrates unambiguously that his assertions are false.

    His argument about forcing Electors’ votes a certain way being a long-standing tradition ignores two basic facts that a lawyer should be embarrassed to have ignored:

    1) The Constitution is not amended simply by States deciding to do things differently in defiance of the text.

    2) The only reason this practice is long-standing is because it hasn’t been challenged in court. Why not? Because only Electors have standing to challenge, and for the most part the political party system has stifled any attempt at independent Elector voting.

    State legislatures are permitted to determine how Electors are appointed. After appointment, Electors gather together to vote. The State may no more demand an Elector vote for a specific candidate than they may fill out your ballot for Senator and demand that you select their preferred candidate instead of your own choice.

    This is not a question for Congress to decide – the text of the Constitution should be upheld, regardless of the partisan concern Keith has for how dangerous upholding the Constitution might be.

  9. The Hamilton Electors were playing with fire in lobbying their colleagues to overturn the presidential election results as determined by the popular ballot

    Say what now? Might want to re-check what the popular ballot actually said.

  10. Completely disagree. In this country, presidents are elected, not by general citizens, but by Electors, who are appointed in the manner directed by each state’s legislature.

    There is no problem, and not inconsistent with the design of the constitution, for state legislatures to decide that the electors should be appointed by popular ballot. But it is a problem, a big one, indeed a kind of fraud, for states to conceal the very existence of the electors from the public and to fabricate an illusion that they are voting, not for a particular slate of electors, but for an actual presidential candidate. They are not.

    A President can of course require a Supreme Court nominee to pledge to vote a particular way in a future case as a condition of appointment, just as a state legislature can do with prospective electors before appointment. But such a pledge is obviously not binding on the Supreme Court Justice once appointed. The appointed Supreme Court justice has a right, indeed some would say a duty, to disregard the pledge and exercise independent judgment based on the evidence and arguments of the case. The same with Electors once they take office.

    The President may WISH to have supreme court justices who are completely predictable and who will do exactly what he wants. The constitution permits such a wish. Nothing prevents The President (or Congress) from imposing a requirement that prospective nominees sign pledges. Nothing prevents Presidents whose nominees don’t do what they promise once in office from characterizing them as faithless. But the Constitution obviously doesn’t permit any actual enforcement of such a pledge. It’s a worthless piece of paper.

    Imagine a President who identifies a judicial nominee only as a pro-choice candidate, (or pro-life, take your pick), and then refuses to reveal the candidates’ identity, saying only that the nominee has signed a pledge that if confirmed they will vote a particular way on abortion. Such a procedure obviously removes a great deal of congress’ power of choice. By concealing the nominee’s identity, congress is unable to vet the nominee or determine either how likely they are to keep their word or what kind of independent judgment they might use. A great deal of Congress’ power is taken away.

    Same here. By concealing the very identities of the individuals the public is actually voting on, voters are left without any ability to assess wither how likely they are to keep their word or how they might use the independent discretion they possess.

    Voters’ power here is always indirect, but their potential power is substantial. But by concealing the reality of what they are doing from them, by creating an illusion based on pledges that are nothing more than worthless pieces of paper, as worthless as a prospective justice’s written pre-appointment promise to vote a particular way in a case, state legislatures strip voters of much of the actual power of Choice the Constitution permits them.

    1. It might be argued that the two cases are different, as no ethical prospective justice would sign a pledge to vote a particular way in a case. But are they really different? Perhaps no ethical prospective elector ought to sign a pre-appointment pledge to vote a particular way, and It’s the prospective elector who does so is being unethical. Still, there are people willing to do so.

      Same with Justices. Nothing limits the reasons a President considers in appointing a justice. Nothing prevents a president from requiring a pledge. If ethical judicial candidates refuse to sign, a President can simply limit his search to the unethical ones who will. And they will exist, A President can similarly argue that times have changed, and an independent judiciary is as archaic and against the spirit of the times as an independent Electoral College. He might similarly get people to think of the ethics as going the other way, so that law professors start regarding justices who go back on their pledges as faithless.

  11. I recall reading in a history book long ago about the time of the Articles of Confederation, and the lead-up to the meeting in Philadelphia that produced the Constitution. I think it was Rufus King who was reported to have said, “For God’s sake man, be careful whom you send”. Rufus knew what was coming.

    Once the 538 Electors are chosen, the election is literally in their hands. My message to the states: For God’s sake, be careful whom you send”

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