« Gary Lawson: A Private-Law Framework for the Public-Law Puzzle of Subdelegation
Michael Ramsey
| Main | A Reply to John Vlahoplus on Title VII
James Phillips »

05/30/2020

John McGinnis on Faithless Electors and the Threat to Originalism
Michael Ramsey

At Law & Liberty, John McGinnis: Faithless Electors and Faithful Judges.  Here is the introduction:

Two cases argued this month, Chiafalo v. Washington and Colorado Department of State v. Bacca, pose the most important questions this term for originalism. They concern the ability of presidential electors in the Electoral College to exercise their own legal discretion in the choice of President. In the first case, Washington has fined Mr. Chiafalo for refusing to vote for Hillary Clinton, the candidate to whom he was pledged. In the second, Colorado replaced Mr. Bacca before he could vote for a candidate other than Clinton, to whom he was also pledged. Both electors object to their treatment as violating their rights as presidential electors under the Constitution.

The cases’ significance for originalism stems from the absence of controlling Court precedent on the question of a presidential elector’s discretion. Most Supreme Court cases have prior cases that arguably dispose of the issue, but these do not. The only case about the obligations imposed on electors, Ray v. Blair, concerned moral pledges that parties required of the electors, not the very different question of whether the electors’ choice can be disciplined by law. In their lack of controlling precedents, these new cases resemble NLRB v. Noel Canning, in which the Court had to address, for the first time in its jurisprudence, certain important questions about the scope of the Recess Appointments Clause.

Unfortunately, if the oral argument for the cases about presidential electors is any indication, the Court may do grave damage to originalism by suggesting that the bad consequences of a constitutional provision or practice subsequent to the time of its enactment can override its original meaning.

Also from later on, this point:

Some of the justices, including Sotomayor, Kavanaugh, and Kagan, also suggested that common practices since the time the Electoral College was created might be considered in addition to the original meaning. But this method has many of the same problems as the consequentialist approach, and it is not akin to following judicial precedent. The scope of practices is generally less clear than the scope of judicial precedent because such practices do not come with a rationale laid out in a case. For instance, it has been the practice for some time for many states to require electors to pledge themselves to a candidate. But this practice of pledging has not carried with it any legal obligation, which is the relevant issue here.

Agreed.  I may be more sympathetic to the use of non-judicial precedent to qualify originalism than Professor McGinnis is.  But non-judicial precedent (like judicial precedent) needs to be used precisely and narrowly to fit with originalism.  (See my discussion of custom as a basis of law here, where I use the example of congressional-executive agreements).  In the faithless electors case, the relevant custom is imposing punishment on faithless electors (in the Washington case) and removing and replacing faithless electors (in the Colorado case).  My understanding, as informed by the briefs in those cases, is that neither practice is either longstanding or widespread.  So even if originalism is appropriately tempered by widespread longstanding practice, that isn't an appropriate guide here.