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The Supreme Court decides not to make the Electoral College even worse

“Faithless electors” may be sanctioned for defying voters.

Chief Justice John Roberts and Justice Elena Kagan attend the State of the Union address in the chamber of the US House of Representatives on February 4, 2020, in Washington, DC. 
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Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

Under Monday’s unanimous Supreme Court decision in Chiafalo v. Washington, states may remove or sanction members of the Electoral College if those electors go rogue and defy the will of the state’s voters.

The case arose out of a peculiar effort by a handful of Democratic members of the Electoral College to deny the presidency to Donald Trump. Three members of the Electoral College from the state of Washington cast electoral votes for former Secretary of State Colin Powell, rather than Democratic presidential candidate Hillary Clinton, in the hope that a critical mass of electors from other states would join them in electing a Republican other than Trump.

It didn’t work, and these three “faithless” electors were fined $1,000 each for their trouble.

The core question in Chiafalo is whether states may impose such a sanction on “faithless electors” — electors who vote for someone other than the winner of their state’s popular election for the president. (Two states, Maine and Nebraska, allocate some electoral votes to the winners of individual congressional districts.)

The idea that individual electors may behave faithlessly received bipartisan opposition. Both the Republican National Committee and the Colorado Democratic Party filed briefs urging the Supreme Court to rule against faithless electors. And the decision was ultimately unanimous, although two justices, Clarence Thomas and Neil Gorsuch, disagreed with the reasoning of Justice Elena Kagan’s majority opinion.

In a statement released after Chiafalo was handed down, Paul Smith, a lawyer with the Campaign Legal Center, warned that a contrary ruling could have led to corruption by electors because there are “no federal ethics or transparency laws for presidential electors.” An elector could conceivably sell their vote and the public would have no way to learn about it.

Thirty-two states and the District of Columbia have laws requiring members of the Electoral College to pledge to support the winner of the popular election, and the Supreme Court established in Ray v. Blair (1952) that such pledges are permissible. Fifteen states, however, do more than merely require an elector to make a pledge. They also enforce that pledge by either fining faithless electors or removing those electors and replacing them with someone who will honor the pledge.

The crux of Justice Kagan’s majority opinion is that “the power to appoint an elector (in any manner) includes power to condition his appointment — that is, to say what the elector must do for the appointment to take effect.” That is, a state may tell an elector that they must vote for a particular individual as a condition of being appointed to the Electoral College.

The Constitution gives states broad authority to appoint presidential electors

Every state uses some form of popular election to choose members of the Electoral College, and they have done so for quite a while. By 1832, every state but South Carolina used a popular election to select electors, and South Carolina came around in the 1860s.

But the Constitution does not actually mandate a popular vote. Instead, it provides that “each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” Thus, a state legislature could theoretically draw the names of electors out of a hat.

Thus, as Kagan explains, a state may impose any number of conditions on individuals hoping to join the Electoral College. It may insist “that an elector live in the State or qualify as a regular voter during the relevant time period.” It may require electors to pledge their vote to a certain candidate. And “so long as nothing else in the Constitution poses an obstacle” — a state cannot refuse to appoint African Americans as electors, for example, because that would violate the Constitution’s safeguards against race discrimination — “a State can add, as Washington did, an associated condition of appointment: It can demand that the elector actually live up to his pledge, on pain of penalty.”

The faithless electors argued that the text of the 12th Amendment, which provides that electors shall “vote” by “ballot,” implies that those electors must exercise some choice in deciding how to cast that ballot. But the Court rejects this reading of the Constitution’s text.

Among other things, Kagan notes that it’s not uncommon for candidates to run unopposed for office, especially in down-ballot races. Yet we still think of someone who votes for such a candidate as casting a “vote” or a “ballot” — even though they had no meaningful choice.

The history of American elections undercuts the faithless electors’ argument

Kagan’s opinion also relies on the history of American presidential elections. As she notes, quoting from a 1929 Supreme Court decision, “‘long settled and established practice’ may have ‘great weight in a proper interpretation of constitutional provisions.’”

That is, if the country has consistently run elections in a particular way over the course of many decades, courts should be reluctant to overturn that settled practice.

And there is a wealth of historical evidence showing that the United States rejected the idea that electors should exercise independent judgment very early in our nation’s history. In the very first contested election — the 1796 election between Federalist John Adams and Republican Thomas Jefferson — “would-be electors declared themselves for one or the other party’s presidential candidate,” Kagan writes.

By 1833, Justice Joseph Story wrote that “‘the electors are now chosen wholly with reference to particular candidates,’ having either ‘silently’ or ‘publicly pledge[d]’ how they will vote.” He added that if an elector exercised “independent judgment,” then this act “would be treated as a political usurpation, dishonourable to the individual, and a fraud upon his constituents.”

In total, Kagan notes, only 180 faithless electoral votes have been cast in American history, out of more than 23,000 total votes cast. And a third of these were cast in the 1872 election, “when the Democratic Party’s nominee (Horace Greeley) died just after Election Day.” Setting aside the 1872 election, “faithless votes represent just one-half of one percent of the total.”

This history, combined with Kagan’s textual analysis, is sufficient reason to allow states to sanction faithless electors.

So the upshot of Chiafalo is that, while the Electoral College may still hand the presidency to the loser of the national popular vote, states can prevent individual electors from changing the result of a presidential election.

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