Chiafolo v. Washington

591 U.S. ___ (2020)

Case Year: 2020

Case Ruling: 9-0, Affirmed

Opinion Justice: Kagan

Running for president demands that candidates appeal to the nation for popular support.  After lengthy campaigns involving large rallies, speeches before various groups, widespread advertising, fundraising, media interviews, and debates, voters turn out on Election Day to cast ballots for president.  In light of such extensive electioneering, Americans can be forgiven for not realizing that they do not select the president—at least not directly.

            One of the “balances” that the Framers included in the Constitution was making each element of the national government responsible to a different constituency, thereby reducing the likelihood of the three branches being captured by an oppressive majority.  Under their original design, the Senate was selected by state legislatures, the House by popular vote, the Supreme Court by the President in consultation with the Senate, and the President by a group of presidential electors chosen by each state.

            Over time, the selection of the members of national government has become more democratized.  In 1913, the ratification of the 17^th Amendment placed the election of the U.S. Senate into the hands of the people, for example.  Similarly, states gradually decided to give citizens a more direct say in presidential elections; by the middle of the nineteenth century, most states had shifted the responsibility of choosing their presidential electors from their statehouses to their voters.  As a consequence of this change, voters select their presidential electors.  Those electors, in turn, select the president.

            Unlike the switch to the direct election of senators, the decision to allow the voters to choose their state electors did not require a constitutional amendment.  The reason is that the Constitution allows states to determine how their members of the Electoral College will be chosen. Under Article II, Sec.1, “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…” So, each state has a number of electors, determined by that state’s combined number of senators and representatives, and how those electors are chosen is a matter left to each state.

            States have now opted to allow voters to cast their ballots for a slate of electors who are pledged to support a particular candidate.  Thus, a vote in a presidential election is technically a vote for a group of people (typically party loyalists) who can be counted on to vote for a particular candidate in the Electoral College balloting.[1]

            But suppose an elector decides not to support the candidate to whom he or she is pledged?  Since electors usually have very close ties to the parties of their respective candidates, it seems unlikely.  Indeed, prior to the election of 2016, there were only eight instances of so-called “faithless electors,” that is, electors not voting for their states’ popular vote winners.  Still, one reason why an elector might be disinclined to abandon a pledged candidate is because it is illegal to do so; in many states, there are laws that prohibit electors from casting their votes for anyone other than the candidate who carried that state in the presidential election.

            In 2016, three electors in the state of Washington violated that state’s law by not voting for Hillary Clinton, who had won the state’s presidential contest.  Knowing that Donald Trump would likely win the Electoral College vote, they cast their votes for another Republican, former Secretary of State Colin Powell.  They believed that, if a sufficient number of other electors followed their lead, Mr. Trump would be denied an Electoral College majority, and the election outcome would be determined by the House of Representatives.  Under Washington law, they were fined $1,000 for abandoning the preferences of the state’s voters.  They challenged this law, arguing that electors could not be compelled by state law to vote for a particular candidate.

 

JUSTICE KAGAN delivered the opinion of the Court.

Article II, §1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint….[E]ach State may appoint electors “in such Manner as the Legislature thereof may direct.” Art. II, §1, cl. 2. This Court has described that clause as “conveying the broadest power of determination” over who becomes an elector. McPherson v. Blacker (1892). And the power to appoint an elector (in any manner) includes power to condition his appointment—that is, to say what the elector must do for the appointment to take effect. A State can require, for example, that an elector live in the State or qualify as a regular voter during the relevant time period. Or more substantively, a State can insist…that the elector pledge to cast his Electoral College ballot for his party’s presidential nominee, thus tracking the State’s popular vote. Or—so long as nothing else in the Constitution poses an obstacle—a State can add, as Washington did, an associated condition of appointment: It can demand that the elector actually live up to his pledge, on pain of penalty. Which is to say that the State’s appointment power, barring some outside constraint, enables the enforcement of a pledge like Washington’s.

And nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does. The Constitution is barebones about electors. Article II includes only the instruction to each State to appoint, in whatever way it likes, as many electors as it has Senators and Representatives (except that the State may not appoint members of the Federal Government)….

The Framers could have done it differently; other constitutional drafters of their time did. In the founding era, two States—Maryland and Kentucky—used electoral bodies selected by voters to choose state senators (and in Kentucky’s case, the Governor too). The Constitutions of both States, Maryland’s drafted just before and Kentucky’s just after the U. S. Constitution, incorporated language that would have made this case look quite different. Both state Constitutions required all electors to take an oath “to elect without favour, affection, partiality, or prejudice, such persons for Senators, as they, in their judgment and conscience, believe best qualified for the office.” Md. Declaration of Rights, Art. XVIII (1776); see Ky. Const., Art. I, §14 (1792) (using identical language except adding “[and] for Governor”). The emphasis on independent “judgment and conscience” called for the exercise of elector discretion. But although the Framers knew of Maryland’s Constitution, no language of that kind made it into the document they drafted.

The Electors argue that three simple words stand in for more explicit language about discretion. Article II, §1 first names the members of the Electoral College: “electors.” The Twelfth Amendment then says that electors shall “vote” and that they shall do so by “ballot.” The “plain meaning” of those terms, the Electors say, requires electors to have “freedom of choice.” If the States could control their votes, “the electors would not be ‘Electors,’ and their ‘vote by Ballot’ would not be a ‘vote.’ ”

But those words need not always connote independent choice. Suppose…in a system allowing proxy voting (a common practice in the founding era), the proxy acts on clear instructions from the principal, with no freedom of choice. Still, we might well say that he cast a “ballot” or “voted,” though the preference registered was not his own. For that matter, some elections give the voter no real choice because there is only one name on a ballot (consider an old Soviet election, or even a down-ballot race in this country). Yet if the person in the voting booth goes through the motions, we consider him to have voted. The point of all these examples is to show that although voting and discretion are usually combined, voting is still voting when discretion departs. Maybe most telling, switch from hypotheticals to the members of the Electoral College. For centuries now…almost all have considered themselves bound to vote for their party’s (and the state voters’) preference. Yet there is no better description for what they do in the Electoral College than “vote” by “ballot.” And all these years later, everyone still calls them “electors”—and not wrongly, because even though they vote without discretion, they do indeed elect a President….

…Electors have only rarely exercised discretion in casting their ballots for President. From the first, States sent them to the Electoral College—as today Washington does—to vote for pre-selected candidates, rather than to use their own judgment. And electors (or at any rate, almost all of them) rapidly settled into that non-discretionary role.

Begin at the beginning—with the Nation’s first contested election in 1796. Would-be electors declared themselves for one or the other party’s presidential candidate. (Recall that in this election Adams led the Federalists against Jefferson’s Republicans.) In some States, legislatures chose the electors; in others, ordinary voters did. But in either case, the elector’s declaration of support for a candidate—essentially a pledge—was what mattered. Or said differently, the selectors of an elector knew just what they were getting—not someone who would deliberate…but someone who would vote for their party’s candidate. “[T]he presidential electors,” one historian writes, “were understood to be instruments for expressing the will of those who selected them, not independent agents authorized to exercise their own judgment.” Whittington, “Originalism, Constitutional Construction, and the Problem of Faithless Electors,” Ariz. L. Rev. (2017). And when the time came to vote in the Electoral College, all but one elector did what everyone expected, faithfully representing their selectors’ choice of presidential candidate….

Courts and commentators throughout the 19th century recognized the electors as merely acting on other people’s preferences. Justice Story wrote that “the electors are now chosen wholly with reference to particular candidates,” having either “silently” or “publicly pledge[d]” how they will vote. Commentaries on the Constitution of the United States (1833). “[N]othing is left to the electors,” he continued, “but to register [their] votes, which are already pledged.” Indeed, any “exercise of an independent judgment would be treated[ ] as a political usurpation, dishonourable to the individual, and a fraud upon his constituents.” Similarly, William Rawle explained how the Electoral College functioned: “[T]he electors do not assemble in their several states for a free exercise of their own judgments, but for the purpose of electing” the nominee of “the predominant political party which has chosen those electors.” A View of the Constitution of the United States of America (2d ed. 1829).  Looking back at the close of the century, this Court had no doubt that Story’s and Rawle’s descriptions were right. The electors, the Court noted, were chosen “simply to register the will of the appointing power in respect of a particular candidate.” McPherson.

State election laws evolved to reinforce that development, ensuring that a State’s electors would vote the same way as its citizens. As noted earlier, state legislatures early dropped out of the picture; by the mid-1800s, ordinary voters chose electors. Except that increasingly, they did not do so directly. States listed only presidential candidates on the ballot, on the understanding that electors would do no more than vote for the winner. Usually, the State could ensure that result by appointing electors chosen by the winner’s party. But to remove any doubt, States began in the early 1900s to enact statutes requiring electors to pledge that they would squelch any urge to break ranks with voters. Washington’s law, penalizing a pledge’s breach, is only another in the same vein. It reflects a tradition more than two centuries old. In that practice, electors are not free agents; they are to vote for the candidate whom the State’s voters have chosen….

…Early in our history, States decided to tie electors to the presidential choices of others, whether legislatures or citizens. Except that legislatures no longer play a role, that practice has continued for more than 200 years. Among the devices States have long used to achieve their object are pledge laws, designed to impress on electors their role as agents of others. A State follows in the same tradition if, like Washington, it chooses to sanction an elector for breaching his promise. Then too, the State instructs its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.

The judgment of the Supreme Court of Washington is

Affirmed.

JUSTICE THOMAS, with whom JUSTICE GORSUCH, concurring in the judgment.

The Court correctly determines that States have the power to require Presidential electors to vote for the candidate chosen by the people of the State.  I disagree, however, with its attempt to base that power on Article II.  In my view, the Constitution is silent on States’ authority to bind electors in voting. I would resolve this case by simply recognizing that “[a]ll powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State.” U. S. Term Limits, Inc. v. Thornton, (1995) (Thomas, J., dissenting).

The Constitution does not address—expressly or by necessary implication—whether States have the power to require that Presidential electors vote for the candidates chosen by the people…

The only provision in the Constitution that arguably addresses a State’s power over Presidential electors is Clause 2 of Article II, §1.  That Clause provides, in relevant part, that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.”  As I have previously explained, this language “imposes an affirmative obligation on the States” to establish the manner for appointing electors. U. S. Term Limits (dissenting opinion).  By using the term “shall,” “the Clause expressly requires action by the States.” This obligation to provide the manner of appointing electors does not expressly delegate power to States; it simply imposes an affirmative duty….

Even accepting the Court’s broad interpretation of Clause 2 of Article II, §1, I cannot agree with its determination that this Clause expressly authorizes the Washington law at issue here.  In an attempt to tie Washington’s law to the State’s “power to appoint an elector,” the Court construes [the law] as “enforc[ing] a pledge.” But [Washington’s law] did not involve the enforcement of a pledge or relate to the appointment process at all.  It simply regulated electors’ votes, unconnected to the appointment process.

 To understand the Court’s error, a brief summary of its theory is necessary. According to the Court, Article II, §1, grants States “the power to appoint” Presidential electors “in such Manner as the Legislature thereof may direct.”  That “power to appoint an elector,” the Court states, “includes power to condition his appointment.”  The power to condition appointment in turn allows the State to insist that an “elector pledge to cast his Electoral College ballot for his party’s presidential nominee.”  And finally, “the State’s appointment power...enables the enforcement of a pledge.”  The Court’s theory is entirely premised on the State exercising a power to appoint.

 Assuming the Court has correctly interpreted Article II, §1, there are certain circumstances in which this theory could stand. Some States expressly require electors to pledge to vote for a party nominee as a condition of appointment and then impose a penalty if electors violate that pledge. For example, under Oklahoma law, “[e]very party nominee for Presidential Elector shall subscribe to an oath, stating that said nominee, if elected, will cast a ballot for the persons nominated for the offices of President and Vice President by the nominee’s party.”  Oklahoma then penalizes the violation of that oath: “Any Presidential Elector who violates his oath as a Presidential Elector shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than One Thousand Dollars ($1,000.00)” (emphasis added). Other States have similar laws, first requiring a pledge as a condition of appointment and then penalizing the violation of that pledge.

But not all States attempt to bind electors’ votes through the appointment process. Some States simply impose a legal duty that has no connection to elector appointment.  For example, New Mexico imposes a legal duty on its electors: “All presidential electors shall cast their ballots in the electoral college for the candidates of the political party which nominated them as presidential electors.”  And “[a]ny presidential elector who casts his ballot in violation of [this duty] is guilty of a fourth degree felony.” California has a similar system. It first imposes a legal duty on electors to vote for the nominated candidates of the political party they represent if those candidates are alive.  It then imposes a punishment on “[e]very person charged with the performance of any duty under any law of this state relating to elections, who willfully neglects or refuses to perform it.”  These laws penalize electors for their faithless votes.  But they do not attempt to regulate the votes of electors through the appointment process.  In fact, these laws have nothing to do with elector appointment.

 The Court recognizes the distinction between these two types of laws, i.e., laws enforcing appointment conditions and laws that regulate electors outside of the appointment process.  But it claims this is merely a “small semantic differenc[e].”  Far from being semantic, the difference between the power to impose a “condition of appointment” and the power to impose restrictions on electors that have nothing to do with appointment is fundamental to the Court’s textual argument. The Court’s entire analysis is premised on States’ purported Article II “power to appoint an elector” and “to condition his appointment.” The Court does not, and cannot, claim that the text of Article II provides States power over anything other than the appointment of electors.

 Here, the challenged Washington law did not enforce any appointment condition.  It provided that “[a]ny elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars.” Unlike the laws of Oklahoma, Indiana, Minnesota and the other States…, a violation of [this law] was not predicated on violating a pledge or any other condition of appointment.  In fact, it did not even mention a pledge, which was set forth in a separate, unreferenced provision….[T]he Court’s claim that Washington’s law was rooted in Article II, §1’s “power to appoint”…is simply not accurate. Thus, even accepting the Court’s strained reading of Article II, §1’s text, I cannot agree with the Court’s effort to reconcile Washington’s law with its desired theory.

 In short, the Constitution does not speak to States’ power to require Presidential electors to vote for the candidates chosen by the people. The Court’s attempt to ground such a power in Article II’s text falls short. Rather than contort the language of both Article II and the state statute, I would acknowledge that the Constitution simply says nothing about the States’ power in this regard…

*  *  *

 “The people of the States, from whom all governmental powers stem, have specified that all powers not prohibited to the States by the Federal Constitution are reserved ‘to the States respectively, or to the people.’ ” U. S. Term Limits, supra, at 852 (Thomas, J., dissenting). Because I would decide this case based on that fundamental principle, I concur only in the judgment.

 

[1]   Almost all states follow the “unit rule,” which means that the candidate who wins in a given state is awarded all of that state’s electors.  Maine and Nebraska do not follow this winner-take-all system and allow for some degree of proportional representation in their electors.