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05/13/2020

Faithless Electors Today [Update: Prakash Agrees]
Michael Ramsey

Today is the Supreme Court argument in Chiafalo v. Washington and Colorado Department of State v. Baca, the "faithless electors" cases.  The briefs on both sides are heavily originalist/textualist.  The electors' brief focuses on the original meaning of series of words and phrases in Article II: "electors," "vote by ballot" and the states' power "to appoint" electors.  The states' brief counters (as the heading of the first section of their argument) that "The Text and Original Understanding of the Constitution Demonstrate State Authority to Remove or Penalize Electors Who Violate the Conditions of their Appointment."

There's been much speculation in commentary about the framers' intent in creating the electoral college.  I think that  speculation is fruitless and misconceived methodologically.  As David Schwartz shows in the interesting post excerpted here yesterday, the framers had a range of views on the college; many of them had unknown views, and some may not have had any fully formed view.  The only thing we know they agreed on is the structure of the college described in the Constitution's text.  Speculation beyond the text is no more than speculation.

As to the text, it seems straightforward.  States appoint electors in the manner their respective legislatures choose.  There are no limits on the criteria states can use.  So states can pick electors with a view to the electors exercising discretion in the balloting, or states can pick electors based on the electors' commitment to vote a certain way.  True, some framers did have the idea that electors would exercise deliberative choice, but nothing in the text requires that and nothing in the surrounding circumstances indicates that the framers collectively had a background understanding that this would necessarily occur.  So the modern system of appointing electors pledged to a particular candidate seems entirely within the bounds of the text, irrespective of what any framers might have thought about it.

But that's as far as the text goes.  The text does not give the states any power relating to electors other than appointment.  Nothing in the text gives states power to remove electors or to fine electors who don't vote as promised.  The states say these powers are implied by the power to appoint, but I'm doubtful.  Prior to the Seventeenth Amendment, state legislatures also had power to appoint Senators, which they often did with expectations of how the Senators would vote, but no one supposed that states could remove or fine Senators for voting contrary to their promises.

In sum, Article II gives the states considerable power over electors through the power of appointment (so much so that as a practical matter the outcome of these cases probably doesn't matter much).  But the text does not give states unlimited power over electors -- just the power to appoint.

UPDATE:  In the Wall Street Journal, my sometime-coauthor Saikrishna Prakash makes a similar argument (among others): ‘Faithless’ Electors Are Faithful to the Constitution.  From the core of the argument:

The court should nullify state laws that impinge upon the discretion of presidential electors. While the states appoint electors, they lack the power to remove them or control their votes—as was true for state-appointed U.S. senators before the 17th Amendment. Once selected, presidential electors have the constitutional right to vote as they please.

He goes on to rely a bit more than I would on the framers' supposed intent to create a deliberative system, perhaps implying that even requiring pledges from electors prior to appointment is unconstitutional under the original design.