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Faithless Electors Go to the Supreme Court
Michael Ramsey

On Friday the Supreme Court (as expected) granted cert in Chiafolo v. Washington and Colorado Department of State v. Baca, the faithless electors cases from Washington state and Colorado.  Here is my previous post on the Tenth Circuit's originalist-oriented decision in Baca, with links to earlier originalist pro-faithless-elector commentary by Rob Natelson and Mike Rappaport, and non-originalist commentary by Noah Feldman.

David Post has more at Volokh Conspiracy: The Return of the "Faithless Elector" (linking to amicus briefs he and historian Michael Rosin have submitted in the lower courts and at the cert stage.  He argues:

Our briefs have focused on a single, narrow point: that while we all have come to regard presidential electors as performing a purely formal, ministerial function—a "kabuki democracy"-style ceremonial ratification of the results of the presidential election—it is hard to deny that the Framers had something very different in mind. As Justice Jackson put it (in dicta) some time ago:

"No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, is that electors would be free agents, to exercise an independent and nonpartisan judgment as to the [individuals] best qualified for the Nation's highest offices." Ray v. Blair, 343 US 214, 232 (1952).

Hamilton's Federalist No. 68 is the primary, though hardly the only, support for this view of the "original expectation" of the Framers. Hamilton stressed the importance of having the president elected by "men most capable of analyzing the qualities adapted to the station," noting that a "small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation."

The original scheme, in short, contemplated that presidential electors would actually elect the president—not merely ratify the results of an election by others.

All true, but the actual text doesn't say this; it says (Art. II, Sec. 1) "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ..."  So I think the originalist question is more difficult to answer.  States have basically unconstrained authority to direct how the electors are chosen, which can include choosing them in a way that likely assures a particular outcome.  But textually the states' power only extends to the choosing, not to the voting itself, so in the end I agree with Professor Post.

ROB NATELSON ADDS:   We at the Independence Institute also submitted an amicus brief, which I authored. It was cited by the Tenth Circuit in its opinion upholding elector discretion.

The brief addresses a host of issues but perhaps its most original contribution is extensive research from debates over the 12th Amendment, which is often cited by those who oppose elector discretion as changing the original system in that respect. As the research shows, that was not the case at all.