John Vlahoplus: Bound Electors
Michael Ramsey
Recently published, John Vlahoplus: Bound Electors (106 Va. L. Rev. Online 1 (2020)). Here is the introduction (footnotes omitted):
In a decision hailed as “a masterpiece of historical analysis and originalist reasoning,” the Tenth Circuit recently held that the Constitution prevents a state from binding its presidential electors to vote for the winner of the state’s popular vote. The Supreme Court has agreed to review and resolve this important issue of constitutional law before the 2020 presidential election.
Far from being a masterpiece, however, the Tenth Circuit opinion is a selective reading of incomplete linguistic, historical, and judicial materials. It ignores centuries of controversy over interpreting the law governing presidential elections. It reaches an overly broad conclusion—that “the states’ delegated role is complete upon the appointment of state electors”—that is inconsistent with constitutional history and practice. It ultimately relies on background political principles that were contested at the adoption of the Constitution and remain contested today.
In addition, the opinion utilizes the disputed interpretive technique of attributing thick meanings to constitutional words to divine substantive results from open-textured or scant constitutional provisions. This technique includes attributing prescriptively thick meanings to words—meanings that implicitly generate substantive rules of law missing from the Constitution’s express text. The Tenth Circuit finds an unwritten constitutional rule that states may not abridge the freedom of presidential electors largely because it finds that at the adoption of the Constitution the word “elector” meant someone who has freedom when voting.
This Essay critiques the Tenth Circuit decision. It furnishes historical support for an interpretation that state power over electors continues after their appointment and may include the power to bind them to the result of a popular election. It identifies issues with attributing thick meanings to constitutional terms. It suggests that the Supreme Court should reject the Tenth Circuit’s reasoning and develop a coherent theory of the roles of the people, the states, and the federal government in the electoral process in order to resolve the dispute. Finally, it suggests a number of questions that the Court might consider in developing that theory.