Imagine that, when the votes are finally counted in the 2020 election, former Vice President Joe Biden squeezes out a narrow victory in the Electoral College. Then imagine that, weeks later, the nation is shocked to learn that President Donald Trump will receive a second term because a few previously unknown members of the Electoral College refused to vote for Biden.
A pair of cases the Supreme Court will hear next week, Chiafalo v. Washington and Colorado Department of State v. Baca, will decide if this scenario is even possible. Both cases involve “faithless electors” — members of the Electoral College who go rogue and refuse to vote for the candidate who won their state.
Washington and Colorado both have safeguards that are intended to prevent faithless electors. In Chiafalo, three electors in 2016 cast their ballots for Republican former Secretary of State Colin Powell, as part of a quixotic effort to place someone other than Trump in the White House. The idea was that, if they supported a relatively moderate Republican, maybe enough other members of the Electoral College would join them and place that person in the White House instead of Trump. These faithless electors were each fined $1,000.
Meanwhile, in Baca, an elector, also in 2016, attempted to vote for then-Ohio Gov. John Kasich, a Republican. But before this ballot could be cast, Colorado removed the elector and replaced him with someone who dutifully voted for Democratic nominee (and Colorado winner) Hillary Clinton.
The legal dispute in both cases turns upon a narrow distinction between a state’s power to appoint presidential electors, and its power to compel those electors to behave in a certain way after they are appointed. In Ray v. Blair (1952), the Supreme Court held that, before someone is appointed as an elector, they may be required to pledge that they will support their party’s nominee. But Ray left unanswered the question of what happens if an elector violates this pledge after they join the Electoral College.
Ray held that “even if such promises of candidates for the electoral college are legally unenforceable … it would not follow that the requirement of a pledge” is unconstitutional, a holding which explicitly avoids the question of whether an elector’s pledge to support a particular candidate is “legally unenforceable.”
That question is now before the Supreme Court. And, while there are profound practical reasons why the country shouldn’t tolerate faithless electors, the legal issues presented by the Chiafalo and Baca cases are fraught and do not have clear answers.
Does the power to appoint an elector include the power to remove or discipline that elector?
All 50 states choose members of the Electoral College through a popular election. Forty-eight states award all of a state’s electoral votes to the candidate who wins the popular vote in that state. The two remaining states, Maine and Nebraska, award two electoral votes to the winner of the statewide popular vote and then one electoral vote to the popular vote winner in each of the state’s congressional districts.
This norm, that members of the Electoral College will be chosen by popular election, emerged very early in American history. By 1832, every state except South Carolina chose electors by a statewide vote. South Carolina came around in the 1860s.
But the Constitution does not mandate popular elections for members of the Electoral College. On the contrary, it provides that “each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” If the state legislature agrees to it, a state could potentially pick members of the Electoral College randomly by throwing darts at a phone book.
Because states have a nearly limitless power to decide how to appoint electors, they may impose virtually any condition on someone hoping to become an elector up until the moment when that elector is appointed. This is why Ray held that states could require potential electors to pledge to support a particular candidate before those electors were formally appointed.
But the electors who wanted to vote for someone other than Clinton in 2016 argue, in their brief to the Supreme Court, that a state’s power to control its presidential electors ceases the moment those electors are appointed. Members of the Electoral College, this brief argues, are akin to federal judges, who are appointed by the president but cannot be removed from office if they displease that president. Or they are similar to senators, who prior to the ratification of the 17th Amendment were chosen by state legislatures — but could not be removed or sanctioned if they violated the state legislature’s wishes after their appointment.
Colorado and Washington, meanwhile, argue that senators and federal judges are exceptions to a broader rule. As Washington argues in its brief, “the ‘default rule’ is that the power to ‘appoint’ includes the power to remove.” Judges cannot be removed by the person who appointed them because the Constitution explicitly states that federal judges “shall hold their offices during good behaviour,” and senators could not be removed by a state legislature because the Constitution provides that senators shall serve “for six years.”
But absent explicit constitutional language indicating presidential electors must serve for a particular amount of time, the states argue, the default rule is that electors may be removed by the same body that appointed them.
There are, indeed, a bevy of Supreme Court cases stating that the power to make an appointment typically includes the power to remove the person appointed. As the Court stated in Myers v. United States (1926), “the right of removal … inheres in the right to appoint, unless limited by Constitution or statute.” But most of these cases deal with the president’s power to remove their own subordinates. The states’ reliance on these cases largely raises the question of whether presidential electors are subordinate to their state’s legislature.
All of which is a long way of saying that a Supreme Court justice who wants to allow faithless electors could draft a perfectly plausible opinion reaching that conclusion, while a justice who wants to forbid faithless electors could also draft a plausible opinion reaching the opposite conclusion.
There are profound practical reasons to oppose faithless electors
Setting aside the question of what the Constitution’s text actually requires, the faithless electors’ brief makes a strong argument that the Framers originally expected members of the Electoral College to exercise independent judgment.
while some Framers supported the idea of the people electing the President directly, there was concern that the people would be unable to select a President given the practicalities of the time. As it could take months for information to travel from one part of the nation to another, the realities of communication in 1787 would make any national campaign directed at the people impossibly difficult.
The Framers’ solution was to create an intermediate body, with members appointed within each state in the manner the legislatures might choose, that would “constitute a separate and coordinate branch of the Government of the United States.”
Every word of these two paragraphs may be true. Yet, while they make a good case for why presidential electors should exercise independent judgment in 1787, they also cut fairly strongly against the case for allowing such discretion today. It no longer takes months for information about a presidential candidate to travel across the nation — often it only takes minutes. We no longer need an “intermediate body” to weigh information that is not readily available to the masses.
Alexander Hamilton famously wrote that the Electoral College would enable the president to be chosen “by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation.” But even if Hamilton is correct that the framers imagine men of such stature being appointed to the Electoral College, that is emphatically not how the Electoral College operates today.
In 2020, the American people expect presidential electors to behave like robots, voting uncritically for whoever their state supported in the election. Members of the Electoral College are typically unknown, and their names rarely appear on any ballot. They possess none of the social capital Hamilton attributed to them.
Which brings us back to where this piece began. Imagine that, weeks after Election Day, Democrats learn that Biden’s victory was ripped from them and handed to Trump by some obscure elector hardly any voters have ever heard of. Would Democrats simply throw up their hands and say “well, shucks, that’s what the Constitution requires,” or would many of them treat this event like an illegitimate coup? (The same questions would apply to Republicans if it was Trump on the wrong end of electors’ independence.)
The legitimacy of a president flows from more than just formal constitutional rules, it flows from a sense that the president was chosen in a fair and non-arbitrary process. Governments, as the Declaration of Independence proclaims, derive “their just powers from the consent of the governed.”
There is no good answer to the question of whether faithless electors are permitted, at least as a formal legal matter. But if the justices choose to allow them, they are potentially endorsing chaos.