The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.