The Faithless Electors Decision Doesn't End the Possibility of Constitutional Crisis


Today, in Chiafalo v. Washington, the Supreme Court held that states may punish "faithless electors," members of the Electoral College who fail to vote as they pledged. Seven Justices relied on Article II, § 1, which allows States to appoint electors "in such Manner as the Legislature thereof may direct."

The Court finds constitutional not only ex post punishment for a faithless elector, but also state laws that "immediately remove a faithless elector from his position, substituting an alternate whose vote the State reports instead." This is the approach taken by most of the states that restrict electors' freedom and also the approach of the Uniform Faithful Presidential Electors ActChiafalo itself does not directly involve a removed elector, but the companion case of Colorado v. Baca does, and the Supreme Court reversed the Tenth Circuit's decision to remove the elector, albeit without explicit comment on the distinction between removal and punishment.

This decision reduces the likelihood that a Presidential election will turn on a faithless elector. But it does not eliminate it altogether. There are, after all, some states that do not compel electors to support the nominee of the party that wins the popular vote. Moreover, the decision does not address what happens if a state has a law that requires electors to vote in a particular way but the state certifies a faithless vote anyway. With sufficiently high stakes, it is plausible that a state's executive or judiciary might allow a faithless elector to continue in office, the apparently applicable state provision notwithstanding. Surely creative lawyers will be able to find some provision of state law, statutory or constitutional, that provides an arguably nonfrivolous basis for not removing an elector.

In such a case, the Supreme Court might intervene, finding the state obliged as a matter of federal law to follow the true meaning of the state law. But it is hardly clear that the Court would. In Bush v. Gore (U.S. 2000), Chief Justice Rehnquist and two other Justices held that because Article II, § 1 refers specifically to the state "legislature," the federal courts have an obligation to ensure that the wishes of the state legislature are followed. But four Justices disagreed and two did not resolve the Article II question. Thus, even after today's cases, the Justices have considerable freedom to handle a faithless elector permitted by the state however the Justices like.

I do not believe that the Justices would take just any excuse to resolve a Presidential election in the direction they prefer, but Bush v. Gore suggests that state supreme court justices and U.S. Supreme Court Justices will often resolve colorable legal issues in the direction of their preferred candidate rather than based on their more general interpretive philosophy. The real danger of faithless electors is not that electors would ignore the will of the voters, but that there will be uncertainty as to who has won the election. This can mean that the Supreme Court may resolve an election. Bush v. Gore did at least succeed in conclusively resolving the election, rather than provoking a constitutional crisis. But it is plausible to imagine worse scenarios, for example if the President of the Senate refused to count some electors' votes or if there were an eight-member Court and inconsistent lower court decisions.

The most likely foreseeable source of a constitutional crisis involving Presidential electors would arise from the National Popular Vote Interstate Compact. The theory is that if a sufficient number of states pass laws signing onto the compact, then they all agree to cast their electoral votes consistent with the national popular vote winner. If this became firmly established, it might mitigate the danger of faithless electors, because a clear popular vote winner would receive a supermajority of electoral votes. But until the Supreme Court explicitly passes on the constitutionality of the Compact, the Compact serves as an option for the Court to resolve however it likes an election in which the national popular vote and electoral votes as conventionally calculated point in opposite directions.

For example, the Court could hold that the Compact is inoperable if not validated by Congress. There is a live debate as to whether congressional authority is required. Akhil Amar has argued that the NPVIC would be constitutional. But some commentators have argued to the contrary. My purpose is not to resolve this here, but simply to suggest that the issue is sufficiently credible (a low bar) that Justices might resolve it based on their political preferences if the stakes were sufficiently high. Suppose Congress explicitly approved the Compact. It might seem that the next time there is a divided Democratic government, Congress would choose to do this, given the perception that the Electoral College helps the Republicans. But that is a double-edge sword. While it would remove the argument that the NPVIC is an unauthorized interstate compact, it would make it easier for the courts to intervene in NPVIC disputes. The Compact would then be enforceable in federal court, facilitating intervention in any disputes.

In any event, the Court would have plenty of arguments available to strike down the NPVIC. For example, the Court could hold that the NPVIC is an unconstitutional delegation of state power, violating the Guarantee Clause. Sure, the Court today seemed to indicate that the Legislature has great latitude in determining the manner in which electors are to be appointed, but that power might have some outer limit. (Could a state promise to appoint electors based on a poll of the citizens of France?) My point, of course, is not to endorse these arguments (National Popular Vote advocates certainly have counterarguments), but to suggest that the Court could find a way to overturn an NPVIC result, if motivated to do so. Thus, enactment would not necessarily favor the Democrats, at least so long as Republicans control the Supreme Court, and enactment might well increase the risk of a true constitutional crisis that the courts are unable to resolve. Today's cases usefully resolved an issue before it was critical, but it seems unlikely that the Court will be able to resolve the constitutionality of the NPVIC until the first post-enactment election in which it matters.