The United States Supreme Court
ruled in Chiafalo v. Washington that
States may punish members of the Electoral College bound by state law to vote
for particular presidential and vice presidential candidates if the Electors
vote instead for candidates other than those to whom they are pledged.
The case arose when three Electors of
the Democratic Party from the State of Washington
voted for candidates other than the Democratic ticket which had attracted the
most votes, as part of a coordinated effort of “Hamilton Electors” to deny the
Republican ticket an Electoral College majority and force a contingency
election by the House of Representatives.
After the Electors were punished with civil fines, they filed suit
challenging the punishment. At issue before
the Court was this state right to punish Electors bound to vote for candidates
to whom they are pledged, namely the presidential and vice presidential ticket
that attracts the most votes in their state or district. Only in 15 States are Electors pledged or
otherwise bound by law and subject to punishment for voting contrarily. Seventeen other States bind Electors
statutorily, but without any punishment.
The Electors cited statements of
the Framers of the Constitution in the Federalist
Papers, particularly No. 68, which contemplated the Electoral College as a
representative and deliberative body and the plain meaning of the words in
Article II of “electors,” “vote,” and “ballot” to argue they had discretion to vote
their best judgment in good conscience.
The Court, strictly citing the text of the Constitution, ruled
that States have broad authority under Article II to appoint Electors in the
manner of their choosing, including to enforce by punishment the binding of
Electors. The majority opinion, written
by Justice Elena Kagan, cites the Election of 1796, in which the President and
Vice President elected were of two different political parties, as proof that
the right of Electors to vote their choice was problematic. Thus the Court acknowledges that election as an example of when the Electors actually did determine the outcome of an election (i.e. of
Thomas Jefferson as Vice President), but only to dismiss it as if it were a
product of mischief, instead of as the validation of the purpose of the
Electoral College. Kagan regards it as “unworkable”
that the Chief Executive and the President of the Senate might be of two
different political parties, which, though less likely today, remains possible
under a number of circumstances. She misunderstands
that the Vice President is a member of the Legislative, not the Executive
Branch, and that such a split is not too dissimilar from a party split between
the President and Congress, as the Framers did not envision the Vice President
as a deputy President. Regardless, the
1796 election was not the impetus Kagan implies it was for the Twelfth
Amendment as much as the Election of 1800, which produced a tie because each
Elector could cast two votes, without specifying a preference for President or
Vice President.
The Court relies on an argument of longstanding
practice developed since the Twelfth Amendment by the early Twentieth Century
of choosing Electors effectively by preference vote for the presidential and vice
presidential candidates, then of States enacting statutes binding Electors to
vote for the ticket attracting the most votes, and particularly of the last
sixty years of enforcing these statutes with punishments of Electors who vote
contrarily to the so-called “popular vote,” even though the Court acknowledges
that the votes are actually for the Electors.
However, longstanding practice is not dispositive and there is also a
contrary longstanding practice of allowing Electors to exercise
discretion. Eighteen States do not bind
their Electors to vote a certain way, with a variety of their degree of independence,
based on the method of their nomination.
Kagan emphasizes party nominations of Electors to suggest they are
expected to vote for their parties’ presidential and vice presidential
nominees, but does not consider that the method encourages only the nomination
of Electors who may share particular beliefs, and not necessarily a preference for
their parties’ ticket. In observing the
relatively few contrary votes against Electors’ same-party presidential
nominees, she fails to contemplate the relatively extraordinary contingency of
significant intra-party splits. The
Court thus implicitly accepts the indirect influence of parties in the
constitutional process, beyond the contemplation of the Framers and expresses
no sense of the Electoral College as a check on the people or parties, unlike
Alexander Hamilton in Federalist No. 68. The Framers did not imagine state
Legislatures enacting state laws favoring the role of parties, or a popular
election for President, names printed on ballots, or even candidates
campaigning for any office.
Kagan makes analogies of binding Electors to proxy voting, even though
the Framers did not grant State Legislatures a vote they could delegate to
others to cast in their stead, and to the acceptance of votes made under duress,
as if they are acceptable. The Court did
not consider why the Constitution does not expressly grant State Legislatures a
more direct role, such as by a proxy vote were the Electoral College not
intended to be representative and deliberative.
But under the majority’s reasoning, State Legislatures, which originally
appointed Senators, could have even bound them under penalty, and thereby
rendered the Senate less representative and deliberative.
The Court noted the plaintiffs’ argument against
binding Electors in case of a death of presidential or vice presidential
candidate, but did not rule on exceptions to state statutes for such a
contingency. It did not consider other potential contingencies, such as
incapacity, the subsequent discovery of a candidate’s ineligibility, or a
candidate’s renouncement of his candidacy.
There was no thought of the not-unprecedented party strategy of
nominating different tickets in different States to obtain a majority of the
Electoral College for one particular ticket.
Justice Clarence Thomas disagreed in
his concurrent opinion with the Court majority that the state power in Article
II over the method of choosing Electors, (e.g. appointment or popular election)
includes the power to impose conditions on their appointment, such as a pledge
to vote a certain way. Because the Constitution
does not limit state power, he argues that the States instead have a right
under the Tenth Amendment to impose a duty on Electors, to which Justice Neil
Gorsuch agreed.
Either way, the Court’s unanimous
ruling holds that whatever the Framer’ intent was and the practice of some
States and Electors, the Electoral College is not constitutionally required to be
representative and deliberative because the States have the right to determine the
role of Electors, under the threat of penalty, although States may also continue
to allow Electors to vote freely. And
State Legislatures, as Washington
subsequently did, may repeal their provisions to punish Electors for how they
vote.
Therefore, the Court affirms that the President of the Union
of the States is effectively elected by the States through whichever method
they choose, especially to the degree they bind their Electors. Their textual interpretation may be the right
approach, but the Court’s broad interpretation of state power creates
implications that it may not have anticipated, as it implicitly affirms the right
of State Legislatures to enforce the binding of Electors whom they directly
appoint or even of Electors elected in their own right (i.e. without a
presidential preference vote), both of which were the early methods of choosing
Electors. States Legislatures implicitly
could even conduct a presidential preference vote and then require the Electors
to vote for different candidates.
Just as the role of the Electoral
College has changed over time and various contingencies have arisen, it could
continue to evolve in perhaps unexpected ways as States consider various ideas
on altering how they choose Electors, as the Supreme Court has ruled the
Constitution defers to their discretion.
