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08/16/2020

A Second Opinion re: Chiafalo v. Washington
David Weisberg

I disagree with Prof. Rappaport’s recent post on the “faithless electors” caseChiafalo v. Washington.  I consider myself a “textualist” rather than an “originalist” when it comes to constitutional interpretation, so I won’t venture a view as to whether or not Justice Kagan’s opinion “abuses originalist methods to reach a clearly incorrect result.” I contend only that the case was correctly decided, and that the result is completely consistent with the plain meaning of the constitutional text.  My analysis is, however, very different from that found in the Court’s opinion. 

The relevant provisions of the Constitution are set forth as follows by Prof. Rappaport:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . .

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate.

The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted . . . .

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

(I note that Prof. Rappaport doesn’t cite any word or phrase in these provisions that has changed its dictionary-meaning since ratification, so we probably would both agree that the meaning of the relevant words and phrases in 1788 was the same as today’s meaning.  As a textualist, that is the rebuttable presumption with which I begin.)

Prof. Rappaport says that the relevant constitutional provisions “suggest” that the electors’ votes are “not subject to state control,” and that key terms—“electors,” “vote,” and “ballot”—“suggest a person who makes the decision based on his own judgment rather than being controlled by someone else, such as the appointer.”  I think all the relevant language is consistent with the Court’s unanimous decision.

Consider jurors.  To qualify as a juror, a person must take an oath that he or she will render a true verdict according to the evidence and the law.  This means inter alia that the juror is duty-bound to follow the judge’s instructions with regard to the law.  The juror is not permitted to exercise any discretion with regard to those instructions; he or she may not, consistent with the oath, disregard or distort them.  Yet, jurors “vote,” and typically vote using “ballots.”  We do not consider those votes to be artificial or illegitimate merely because jurors are duty-bound to follow the judge’s instructions.  Even if the facts are not in dispute and the jury’s only task is to apply the law to the facts, one would not say that, because the jury is bound by the judge’s instructions, it did not truly vote and render a verdict.

We sometimes encounter clearly incorrect verdicts and even “jury nullification”—what happens if the jury’s verdict is inconsistent with the law?  Imagine a criminal case where the facts are undisputed; the only issue is the application of the law to those facts.  (This is not a mere theoretical possibility; e.g., every “test case” brought to challenge a statute is carefully structured to present undisputed facts.)  The jury either convicts or acquits.  If the jury convicts, and the trial court or an appellate court later decides that no reasonable juror could apply the law to the facts and vote to convict, the conviction is vacated.  Thus, the votes of “faithless” jurors—jurors who did not fulfill their oath to follow the judge’s instructions on the law—are effectively cancelled.  This is analogous to the remedies against faithless electors upheld in Chiafalo.

What happens if a jury acquits a defendant who clearly should have been convicted?  Nothing happens, but not because our legal system affirmatively endorses the validity of a jury verdict that is inconsistent with law.  Nothing happens because an entirely separate rule—the bar against double jeopardy—compels acceptance of a verdict even if it might be incorrect as a matter of law.  A jury might incorrectly acquit because it deliberately defied the judge, or didn’t understand the judge, or didn’t listen to the judge, or just wanted to go home; in any event, the defendant can’t be re-tried.  If we did not prohibit double jeopardy, an acquittal that was clearly inconsistent with the law presumably would be vacated, just like a wrongful conviction. 

The fundamental problem with Prof. Rappaport’s analysis, I think, is encapsulated in his statement that the relevant terms—“electors,” “vote,” “ballot”—“suggest a person who makes the decision based on his own judgment rather than being controlled by someone else, such as the appointer.”  But when someone pledges to act in a certain way if appointed to a special role, that person is not “controlled by someone else” when the pledge is honored; the person is entirely self-controlled in a literal sense.  He or she was perfectly free to refuse the appointment and the requisite pledge.  No elector (or juror) is ever forced to take the oath.  Indeed, a potential juror will always be excused for cause if she candidly discloses that she could not follow the judge’s instructions if those instructions compelled a verdict inconsistent with her religious or moral scruples.  In both cases—juror and elector—the pledge is freely given when the role is assumed, and the pledgor therefore is not “controlled” by anyone other than himself.

If I am correct in thinking that original-public-meaning originalists would agree that all the relevant words and phrases in the Constitution have the same meaning today that they had at ratification, then both originalists and textualists can be assured that, if my analysis is correct, the result in Chiafalo is consistent with the plain meaning of the Constitution and not any kind of a disaster.

One final, non-textualist, non-jurisprudential thought.  The framers of the Constitution were of the same generation as, and some were even numbered among, those Americans who in the Declaration of Independence “mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”  Is it credible that people of that era would be offended if an elector were required to honor a pledge he or she had freely given before assuming office?