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08/28/2019

Original Meaning in the the Faithless Electors Case [Updated]
Michael Ramsey

Last week the Tenth Circuit held in Baca v. Colorado Department of State that Colorado could not remove and replace a presidential elector who failed to vote for the candidate winning the most votes for President in Colorado. (This sets up a conflict with the Washington Supreme Court, which held that Washington could fine so-called "faithless" electors -- Lyle Denniston has this analysis at Constitution Daily).  The Baca majority (Judge McHugh for herself and Judge Holmes; Judge Briscoe dissented on mootness) rests heavily on historical textualism, backed up by cites to founding era dictionaries (some footnotes omitted): 

Mr. Baca contends that not only is a role for the state beyond appointment conspicuously absent from the Constitution, but the language used—specifically the terms “elector,” “vote,” and “ballot”—also establishes that no such role exists because presidential electors are granted the constitutional right to exercise discretion when voting for the President and Vice President. In analyzing this contention, we first consider the meanings of those terms as understood at the time of the Constitution’s ratification. Then, we compare the use of “elector” in Article II and the Twelfth Amendment with the use of that term elsewhere in the Constitution.

1) Contemporaneous dictionary definitions

“[T]he enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188 (1824). Therefore, we look to contemporaneous dictionaries to understand the meanings of the words used in the Constitution.

[Footnote:] For the period of 1750–1800, the following four dictionaries are considered “the most useful and authoritative for the English language”: Samuel Johnson, A Dictionary of the English Language; Nathan Bailey, A Universal Etymological English Dictionary; Thomas Dyche & William Pardon, A New General English Dictionary; and John Ash, The New and Complete Dictionary of the English Language. Scalia & Garner, Reading Law: The Interpretation of Legal Texts 419 (2012). There are four additional dictionaries deemed the most relevant for the period of 1801–1850—dictionaries from 1806, 1818, 1828, and 1850. Id. at 420. Because the Twelfth Amendment was adopted in 1804, the only one of these relevant for our purposes is Noah Webster’s 1806 dictionary, A Compendious Dictionary of the English Language. Id.

Dictionaries from the relevant period support Mr. Baca’s contention that the drafters of the Twelfth Amendment intended electors to exercise discretion in casting their votes for President and Vice President. At the time of the Twelfth Amendment, the term “elector” was defined as “[h]e that has a vote in the choice of any officer,” 1 Samuel Johnson, A Dictionary of the English Language (London, 6th ed. 1785); “[a] chuser,” Nathan Bailey, A Universal Etymological English Dictionary (London, 1763); and “[o]ne who chooses, one who has a vote in the choice of any public officer,” 1 John Ash, The New and Complete Dictionary of the English Language (1795); see also Thomas Dyche & William Pardon, A New General English Dictionary (11th ed. 1760) (defining elector as “a person who has a right to elect or choose a person into an office”); Noah Webster, A Compendious Dictionary of the English Language (1806) (defining elector as “one who elects,” and elect as “to choose, select for favor, prefer”).

Similarly, the term “vote” was defined as “[s]uffrage; voice given and numbered,” 2 Samuel Johnson, A Dictionary of the English Language (London, 6th ed. 1785); “[v]oice, [a]dvice, or [o]pinion of a [m]atter in [d]ebate,” Nathan Bailey, A Universal Etymological English Dictionary (London, 1763); “to speak for or in behalf of any person or thing; also to chuse or elect a person into any office, by voting or speaking,” Thomas Dyche & William Pardon, A New General English Dictionary (11th ed. 1760); “[a] suffrage, a voice given and numbered, a determination of parliament”; “to chuse by suffrage; to give by a vote,” 2 John Ash, The New and Complete Dictionary of the English Language (1795); “to give or choose by votes,” and “a voice,” Noah Webster, A Compendious Dictionary of the English Language (1806). Correspondingly, “to vote” was defined as “[t]o chuse by suffrage; to determine by suffrage,” 2 Samuel Johnson, A Dictionary of the English Language (London, 6th ed. 1785), and “to give one’s [v]oice,” Nathan Bailey, A Universal Etymological English Dictionary (London, 1763).

And contemporary sources defined “ballot” as a mechanism for choosing or voting. See 1 Samuel Johnson, A Dictionary of the English Language (London, 6th ed. 1785) (defining “ballot” as “[a] little ball or ticket used in giving votes, being put privately into a box or urn”); id. (defining “to ballot” as “[t]o choose by ballot, that is, by putting little balls or tickets, with particular marks, privately in a box; by counting which, it is known what is the result of the poll, without any discovery by whom each vote was given”); Nathan Bailey, A Universal Etymological English Dictionary (London, 1763) (defining “ballot” as “[a] little ball . . . used in giving of [v]otes”); 1 John Ash, The New and Complete Dictionary of the English Language (1795) (defining “ballot” as “[t]o choose by dropping a little ball or ticket into a box; to choose by holding up the hand”); Thomas Dyche & William Pardon, A New General English Dictionary (11th ed. 1760) (defining “ballot” as “to vote for, or chuse a person into an office, by means of little balls of several colours, which are put into a box privately, according to the inclination of the chuser or voter”); Noah Webster, A Compendious Dictionary of the English Language (1806) (defining “ballot” as “to choose or vote by ballot” and “a little ball, little ticket, chance, lot”).

As these sources reflect, the definitions of elector, vote, and ballot have a common theme: they all imply the right to make a choice or voice an individual opinion. We therefore agree with Mr. Baca that the use of these terms supports a determination that the electors, once appointed, are free to vote as they choose.

2) Use of “elector” in the Constitution

Mr. Baca also points to the use of the word “elector” elsewhere in the Constitution as support for his position that electors may vote freely. This approach is sound because, “[w]hen seeking to discern the meaning of a word in the Constitution, there is no better dictionary than the rest of the Constitution itself.” Ariz. State Legislature, 135 S. Ct. at 2680 (Roberts, C.J., dissenting); see also United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (recognizing that when a term, such as “the people,” is being used as “a term of art employed in select parts of the Constitution,” that term should be given the same meaning in each context and contrasted with the use of other terms).

The term “electors” is used in Article I of the federal Constitution. Members of the House of Representatives are “chosen every year by the people of the several states, and the Electors in each state shall have the qualifications requisite for Electors of the most numerous branch of the state legislature.” U.S. Const. art. I, § 2, cl. 1 (emphases added). The term “electors” as used there refers to the citizen voters who choose the persons who will represent them in the House of Representatives.

The term “electors” is also used in the Seventeenth Amendment. Although Senators were “chosen by the legislature” of the state at the time of the founding, id. art. I, § 3, cl. 1, the Seventeenth Amendment now requires Senators be “elected by the people” of the state, id. amend. XVII. As with the House of Representatives, Senate “electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislatures.” Id. (emphases added).

It is beyond dispute that the “electors” under Article I, Section 2, Clause 1, and the Seventeenth Amendment exercise unfettered discretion in casting their vote at the ballot box.28 It is a “‘fundamental principle of our representative democracy,’ embodied in the Constitution, that ‘the people should choose whom they please to govern them.’” U.S. Term Limits, 514 U.S. at 783 (quoting Powell v. McCormack, 395 U.S. 486, 547 (1969)). “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and the restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964) (emphasis added). “Not only can th[e] right to vote [provided by Article I, Section 2] not be denied outright, it cannot, consistently with Article I, be destroyed by the alteration of ballots or diluted by stuffing of the ballot box.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (citation omitted).

The freedom of choice we ascribe to congressional electors comports with the contemporaneous dictionary definitions of elector discussed above. And because we treat usage of a term consistently throughout the Constitution, Verdugo-Urquidez, 494 U.S. at 265, the use of elector to describe both congressional and presidential electors lends significant support to our conclusion that the text of the Twelfth Amendment does not allow states to remove an elector and strike his vote for failing to honor a pledge to vote for the winner of the popular election. Instead, the Twelfth Amendment provides presidential electors the constitutional right to vote for the candidates of their choice for President and Vice President.

That's a lot of dictionary cites!  I think it's a plausible conclusion.  Rob Natelson, whose analyses I always find helpful and usually find persuasive, made a similar originalist argument against the Colorado law back in 2016: Presidential Elector Discretion: The Originalist Evidence.  See also this post (also from 2016) by Mike Rappaport, reaching the same conclusion.(To be clear, I think this is a different question from whether electors are constitutionally obligated to vote their personal preferences (see my discussion here)).

Derek Muller questions some other aspects of the courts' opinion here (at Excess of Democracy).  Noah Feldman argues against it, largely on nonoriginlist grounds, here.

It seems likely that the Supreme Court will take up the issue.  Professor Muller thinks that the mootness argument in Baca might be persuasive.  But the Washington case isn't moot in any event (since it upheld fines against the faithless electors) so that might be the way the issue gets to the Court.  Lyle Denniston reports that  "[w]ith the Tenth Circuit’s ruling now out, and with its creation of a direct split with the ruling in May by the Washington Supreme Court, Professor Lessig [the electors' counsel in the Washington case] presumably will be filing his appeal shortly in the Washington case."

UPDATE:  David Post discusses the case at Volokh Conspiracy: The Return of the Faithless Elector.  It's a good discussion but I disagree with this passage:

But let us imagine the unimaginable—a useful thought experiment, especially, I would think, for adherents to the "original meaning" of the Constitution.  What if we actually ran our presidential elections as the Framers intended—i.e., what if we committed the decision of who would become our president to this group of 538 people, each of whom had been elected by voters in one of the States for the sole purpose of choosing, freely, the candidate they believed best suited to the office?

I take it that a strict originalist would say: that was what the Framers intended, and the Constitution has not been modified so as to alter that structure, so … Yes, that is precisely what the Constitution requires.

Nope.  For public meaning originalists (the predominant view among modern originalists), the question is not what the framers intended but what the text they wrote requires.  As I've discussed in the post linked above, I don't think the text prohibits electors from pledging to vote in a certain way in order to be selected (though it may prohibit states from punishing them if they break that pledge).