Discretion of Electors in Choosing a President

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ArtII.S1.C2.1.2.3 Discretion of Electors in Choosing a President

Article II, Section 1, Clause 2:

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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

“No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices.” 1 Writing in 1826, Senator Thomas Hart Benton admitted that the framers had intended electors to be men of “superior discernment, virtue, and information,” who would select the President “according to their own will” and without reference to the immediate wishes of the people. “That this invention has failed of its objective in every election is a fact of such universal notoriety, that no one can dispute it. That it ought to have failed is equally uncontestable; for such independence in the electors was wholly incompatible with the safety of the people. [It] was, in fact, a chimerical and impractical idea in any community.” 2 By 1832, almost all states used popular presidential elections, and “[b]y the early 20th century, citizens in most States voted for the presidential candidate himself; ballots increasingly did not even list the electors.” 3 Instead, parties chose slates of electors, and states then appointed the electors proposed by the party whose presidential nominee won the popular vote statewide.4

The Constitution does not prohibit electors from casting their ballots for any person they wish and occasionally they have done so.5 In 1968, for example, a Republican elector in North Carolina chose to cast his vote not for Richard M. Nixon, who had won a plurality in the state, but for George Wallace, the independent candidate who had won the second greatest number of votes. Members of both the House of Representatives and of the Senate objected to counting that vote for Mr. Wallace and insisted that it should be counted for Mr. Nixon, but both bodies decided to count the vote as cast.6 More recently, the 2016 election saw a historic number of faithless electors, with seven electors recorded voting for someone other than their party's nominee.7

To prevent so-called “faithless electors” from departing from the preferences expressed by voters, today most states require electors to pledge to support their parties' nominees.8 In Ray v. Blair, the Supreme Court rejected a constitutional challenge to a party rule requiring elector candidates to pledge that they would support the nominees elected in the primary in the general election.9 The Court first concluded that excluding electors who refuse to pledge their support for the party's nominees was “an exercise of the state's right to appoint electors in such manner, subject to possible constitutional limitations, as it may choose.” 10 The Court also concluded that the pledge requirement did not violate the Twelfth Amendment, rejecting the argument that “the Twelfth Amendment demands absolute freedom for the elector to vote his own choice, uninhibited by a pledge.” 11 Noting the longstanding practice supporting the expectation that electors will support party nominees, the Court said that “even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector under the Constitution, Article II, Section 1, to vote as he may choose in the electoral college, it would not follow that the requirement of a pledge in the primary is unconstitutional.” 12

Ray left open the question of whether states could enforce these pledge requirements through sanctions—a question later considered in Chiafalo v. Washington.13 Washington law provided that electors who failed to comply with a pledge to vote for their party nominees would face a civil fine.14 Three electors who were fined after breaking their pledge in the 2016 presidential election challenged the law.15 The Supreme Court confirmed that a state's power to appoint an elector includes the “power to condition his appointment,” and further clarified that as long as no other constitutional provision prohibits it,16 the state's appointment power also “enables the enforcement of a pledge” through a law such as Washington's.17 The Court emphasized that the “barebones” text of Article II and the Twelfth Amendment provide only for “[a]ppointments and procedures” and do not “expressly prohibit[] States from taking away presidential electors' voting discretion.” 18 Finally, the Court recognized that historical practice supported Washington's law, as electors “have only rarely exercised discretion in casting their ballots for President” and “[s]tate election laws evolved to reinforce” this practice.19

343 U.S. at 232 (Justice Jackson dissenting). See The Federalist No. 68, at 458 (Alexander Hamilton) (Jacob E. Cooke ed., 1961); 3 J. Story, Commentaries on the Constitution of the United States 1457 (1833). back
S. Rep. No. 22, 19th Cong., 1st Sess. 4 (1826). back
Chiafalo v. Washington, 140 S. Ct. 2316, 2321 (2020). back
Id. back
All but the most recent instances are summarized in N. Pierce, supra, 122-124. back
115 Cong. Rec. 9–11, 145–171, 197–246 (1969). back
See, e.g., Alexander Gouzoules, The “Faithless Elector” and 2016: Constitutional Uncertainty after the Election of Donald Trump, 28 U. Fla. J.L.& Pub. Pol'y 215, 217 (2017). back
Chiafalo, 140 S. Ct. at 2321–22. back
343 U.S. 214, 222, 231 (1952). The party rule was adopted under the authority of an Alabama law authorizing parties to determine the qualifications of primary candidates and voters. Id. at 222. back
Id. at 227. back
Id. at 228. back
Id. at 230. back
Chiafalo, 140 S. Ct. at 2319–20. In a companion case, the Supreme Court summarily reversed a Tenth Circuit decision ruling a Colorado faithless-elector law unconstitutional. Colo. Dep't of State v. Baca, 140 S. Ct. 2316 (2020) (per curiam). The penalties in the Colorado case were different from a fine: after failing to honor his pledge, an elector's vote was vacated and he was removed as an elector. Baca v. Colo. Dep't of State, 935 F.3d 887, 904 (10th Cir. 2019). back
Chiafalo, 140 S. Ct. at 2322. back
Id. at 2322–24. back
See id. at 2324 n.4 ( “A State, for example, cannot select its electors in a way that violates the Equal Protection Clause. And if a State adopts a condition on its appointments that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause, see Art. II, §1, cl. 5.” ). back
Id. at 2324–25. back
Id. back
Id. at 2326, 2328. back

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