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08/23/2020

Further Comments on Faithless Electors
Michael Ramsey

From David Weisberg:

As a very brief reply to Prof. Rappaport’s response to my comment on his original post about the Chiafalo decision, I would say, first, that the argument based on the original scheme of U.S. Senators being chosen by a State’s legislature is an imaginary horrible.  Suppose, prior to the 17th Amendment, a State’s legislature passed a law providing that anyone chosen to be U.S. Senator must pledge to support policy X.  The esteemed Mr. Jones so pledges and is chosen.  But the Constitution states that Senators have a fixed term of 6 years, and the constitutional doctrine of legislative immunity bars any legal action against a member of Congress for any action taken in the sphere of legitimate legislative activity.  So, for every practical purpose, the “pledge” is a nullity—even if Sen. Jones votes against policy X, he will still serve for 6 years, he cannot be punished by his State, and his Senate votes cannot be reversed.

My second point: Prof. Rappaport’s original post stated 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.”  My response was intended to demonstrate that there is no such “suggestion;” those words are fully consistent with a circumstance in which a person—e.g., a juror—is bound by oath to follow faithfully a judge’s instructions on the law.  Prof. Rappaport responds that the modern practice of requiring jurors to follow those instructions might be unconstitutional.  (A second point of disagreement between us.)  But, whether or not the practice is unconstitutional is beside the point, because the point is that the ordinary English meaning of those key terms neither implies nor even suggests that electors (or jurors) cannot be required to fulfill oaths they freely take upon entering office.  This is a point about the ordinary meaning of certain words, not about the constitutionality of modern jury instructions.      

And from John Vlahoplus:

The Chiafalo decision is a disaster for originalism, and rightly so.  If the words “elector,” “vote,” and “ballot” make electors free agents then they are free of federal as well as state control.  They are free to sell their votes to the highest bidder, foreign or domestic.  The President of the Senate must count known-bribed electoral votes.  

If a state is limited to a narrow power to determine the manner of appointment, and if the federal government is limited to narrow enumerated powers, then neither may judge the qualifications of electors or remove electors for any reason.  If multiple slates of electors return conflicting self-certified lists of electoral votes, as occurred after the Civil War, the President of the Senate must count all of those votes.

If narrow text and historical practice proximate to adoption control, then Congress has no authority to interfere in the manner of appointing electors.  It cannot forbid aliens to vote for electors, to be electors, or to advocate the election of any candidate.

Yet both federal and state governments can forbid bribing electors.  States have long provided for replacing electors.  Congress judges the qualifications of electors, rejects electoral votes that it considers invalid, and forbids aliens to vote for electors, to be electors, or to advocate the election of candidates.  In these and other circumstances, both governments rely on underlying constitutional principles and purposes to elaborate and arguably to act contrary to the Constitution’s sparse text. 

Originalism fails because it routinely results in debates such as those between David Weisberg (here ) and Mike Rappaport (here).  Originalism cannot resolve disputes non-normatively by judging, for example, whether House electors are the right analogue to presidential electors.  There is no reason to believe that any analogue exists.  The Constitution requires presidential electors to vote, for example, but it does not require anyone to vote in House elections.

Originalism also fails as a description of our constitutional practice if Mike Rappaport’s analysis is correct.  Originalism must find all of the state and federal electoral practices described above to be unconstitutional, and the Constitution itself to be a suicide pact.  Insisting that we restrict our interpretive practice to limited historical materials like period dictionaries, statements of Alexander Hamilton, and analogies to other constitutional text is a normative choice.  Fortunately, our constitutional practice and the Chiafalo decision reject that choice.