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12/17/2016

Faithless Electors and the Constitution
Michael Ramsey

At Volokh Conspiracy, David Post argues that under an originalist reading of the Constitution, presidential electors must vote their conscience and not feel bound to vote for the winner of their state.  As he puts it, "to the originalist, the 'faithless elector' is simply performing his or her constitutional duty by exercising independent judgment and discretion in deciding for whom to vote."  

I think this is wrong on multiple grounds.

(1) The Constitution's text says nothing about how electors should vote.  It says two relevant things: (a) "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ..." and (b) "The electors shall meet in their respective states, and vote by ballot for President and Vice President..."  That language is perfectly consistent with states, if they choose, selecting electors based on the electors' advance pledge to vote for a particular candidate.  There is no textual duty to exercise independent judgment.

(2)  Professor Post relies principally on Hamilton's Federalist 68, in which Hamilton appeared to assume that electors would exercise independent judgment and not be pledged in advance.  But that only reflects what Hamilton thought would happen.  It does not purport to be an assessment of what the Constitution's text means.  Modern originalism may look to the framers' expectations to assist in finding the meaning of ambiguous text, but the text, not the expectations, is the law.  In this situation, the text is clear in giving discretion to the state selection process, and it appears that Hamilton erred in guessing how it would be implemented.

One might object that the constitutional structure implies independent judgment on the part of the electors, else why have electors at all?  But the answer is that the text gives discretion to the states to pick electors in any "Manner" the states choose, including but not limited to choosing them for their capacity to exercise independent judgment.  In the modern era, the "Manner" the states have chosen to select electors is to select electors pledged to the candidate that won the popular vote in the state.  Nothing in the Constitution requires states to choose electors in this manner, but nothing forbids it either.

(3) In the immediate post-ratification era, once George Washington retired and elections became seriously contested, states quickly moved to the system of choosing pledged electors.  The electors were typically selected directly by the state legislatures, not by a popular vote as today, but the electors were expressly chosen for their commitment to support a particular candidate.  This approach began as early as the 1796 election; by the 1800 election it was widespread -- suggesting that the founding generation as a whole did not think it unconstitutional.

(4)  In any event, the relevant framers for today are not the framers of the original Constitution but the framers of the Twelfth Amendment (ratified in 1804), which reworked the mechanics of presidential elections.  Prior to the Amendment, electors cast two votes for President, with the person receiving the most votes becoming President and the person receiving the second most votes becoming Vice President.  In the 1800 election, the Republicans' system of pledged electors worked so well that all Republican electors voted for both Thomas Jefferson and his running mate Aaron Burr -- resulting in a tie vote, ultimately resolved by Congress only after considerable drama.  The Twelfth Amendment fixed this problem by adopting the current system of electors casting one vote for President and one for Vice President.

Notably, however, the Amendment did not say anything about how electors made their decision nor do anything to upset the system of pledged electors.  That's critical because (a) the system of pledged electors was well established and well understood when the Amendment was adopted, and (b) the Amendment was specifically designed to correct the problems of the electoral system after the 1800 debacle.  In that context, the Amendment's failure to address the system of pledged electors reflects an acceptance of that system's constitutionality.  So if the question is the framers' intent, Professor Post is looking at the wrong framers.

In sum, neither the text nor post-ratification practice nor framers' expectations (once we are focused on the right framers) supports the idea of a constitutional duty of the electors to exercise independent judgment. 

RELATED:  Robert Delahunty (St. Thomas) makes the opposing argument in greater detail here (although it's not clear he thinks electors are required to exercise independent judgment, as opposed to merely being allowed to do so).  I make the Twelfth Amendment argument in more detail in a recent (12/15/16) article in the Los Angeles/San Francisco Daily Journal, unfortunately behind a paywall (but worth it!).  And at Liberty Law Blog, John McGinnis asks: Why Are Non-Originalist Professors Ignoring Non-Originalist Arguments for Binding Electors? (unfortunately I think the answer is exactly as he suggests).