Saturday, July 11, 2020

Conservative Analysis of the States' Right to Punish Electors for Voting Their Conscience Case


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.

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