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12/27/2016

Why Does the Unconstitutionality of Prohibiting Faithless Electors Seem Problematic?
Mike Rappaport

In my last post, I argued that the original meaning forbids states from passing laws that prohibit faithless voting by the electoral college.  But if the original meaning imposes this prohibition, then why does such faithless voting seem problematic even to an originalist like me?

One problem is that the practice in this country, for a very long time, has involved electoral college voters being understood as voting for the pledged candidate.  But the mere fact of practice cannot be sufficient.  There are plenty of unconstitutional practices that I would happily see eliminated.

A second problem is that this practice has been part of the rules of the competitive game of elections.  The two parties compete according to existing rules.  When those rules appear to be changed in midstream to the advantage of one or the other party, it seems much more problematic than in other situations.

But perhaps the most significant reason I am troubled by following the original meaning in this area is that the electors’ names are not on the ballot.  Assume that the electoral college worked the way that the original meaning seems to suggest it should: independent electors cannot be forced to vote for a particular candidate but instead can exercise independent judgment.  If that were the case, then the people we were electing would really matter.  We should know who they are.  We should be choosing between voting for John Doe, who is a scientist, and Sally Smith, who is a lawyer.  But we do not.  The only name on the ballot is actually that of the candidate the elector is pledged for.  Thus, it is natural to assume that we are actually voting for the candidate.  If the elector does not vote for the pledged candidate, it appears like the rug was pulled out from under us.

One might wonder whether this arrangement is constitutional.  After all, would it really be constitutional if a state sought to hold a congressional election but did not put the names on the ballot?  While such an election would certainly violate democratic norms, it probably would not be unconstitutional.  The Constitution merely states that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ....”  Presumably, a ballot without the electors’ names is one such way.  The best argument on the other side is that a nameless ballot somehow violates the Republican Form of Government Clause, but it is likely (although not certain) that the names of the pledged candidates on the ballot is sufficient to avoid violating the Clause.

To be clear, I am not arguing here that we should not follow the original meaning in this area.  I believe we should.  I just believe that it would be best if that original meaning were announced ahead of time, so that a change in the rules did not interfere with a presidential election.