The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

Steady as She Goes on Faithless Electors


The Supreme Court did its best to leave things as they were in the faithless electors case. One nightmare scenario of the Electoral College is the possibility that presidential electors might change the outcome of an election as decided by the general electorate in November by breaking their pledges and voting faithlessly. Since the mid-twentieth century, a number of states have tried to discourage faithless electors by providing statutory mechanisms for replacing or sanctioning them. The "Hamilton Electors" movement of 2016 put pressure not only on the longstanding norm that presidential electors should be faithful to their pledge to cast their ballots for the winner of their state's popular vote but also on these state laws designed to discourage faithless electors. The Supreme Court has now given its blessing to those state laws.

The decision at least avoids blowing up the current system. The Court reemphasizes the existence of the longstanding norm that presidential electors adhere to their pledges, and it allows states to take actions to enforce those pledges. If the Court had struck down those laws and highlighted the idea that presidential electors were autonomous agents, it might well have encouraged more Hamilton Elector movements and more faithless electors in the future. It might have slightly increased the odds of the constitutional crisis that would inevitably result from the Electoral College attempting to change the results of the November election.

Unfortunately, the Court's decision cannot eliminate the possibility of future faithless electors or the (hopefully remote) possibility that faithless electors could flip the result of a presidential election. The existence of human beings serving as intermediaries between the voters and the final results of a presidential election remains a serious problem in the constitutional design. It would be best if politicians could set aside their other differences and take the modest step of moving forward a constitutional amendment to eliminate presidential electors (which can be done without making any changes in how electoral votes in presidential elections are allocated or counted). In the meantime, states might as well take advantage of this ruling to adopt robust statutory measure to minimize the risk of faithless electors.

The Court left the status quo in place, but it is not obvious that the justices gave us the best reading of the Constitution. Justice Kagan, for the majority of the justices, argued that when the federal Constitution empowered states to appoint electors it also empowered the states to attach conditions on that appointment that would effectively direct the electors' choice of presidential candidate. Justice Thomas, joined by Justice Gorsuch, argued that any such power was among those reserved to the states by the Tenth Amendment. Either way, it would be an oddity in the constitutional design if electors could be appointed to cast a ballot but could exercise no choice regarding for whom they would be casting a ballot.

The majority emphasizes that our traditions and practices can effectively "liquidate" the meaning of the constitutional text. In this case, we have a long history of pledged electors and an established set of norms that call on electors to adhere to their pledges, and the Court finds that history meaningful. Justice Kagan's opinion does not, however, shed much more light on the problem of how we are to assess the significance of such traditions.

I have argued that we should think of this tradition of pledged electors as a "constitutional construction" that is consistent with the constitutional text but not required by the constitutional text. I thought the Hamilton Electors in 2016 were wrong to simply ignore that practical construction of the nature of their responsibilities. But that by itself does not tell us whether such constructions can be leveraged to empower state legislatures to punish or replace faithless electors or whether this longstanding norm has fixed the meaning of the text in a way that cannot be altered by future changes in our shared practices. How constitutional text and tradition interact is a difficult conceptual problem, and the Court's opinion highlights that problem without doing very much to explain how it ought to be resolved.