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ArtII.S1.C2.5 Discretion of Electors to Choose 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.

The Constitution does not prohibit electors from casting their ballots as they wish and occasionally electors have done so.1 In 1968, for example, a Republican elector in North Carolina chose to cast his vote for George Wallace, the independent candidate who had won the second greatest number of votes rather than for Richard M. Nixon, who had won a plurality in the state. Members of the House of Representatives and the Senate objected to counting that vote for Mr. Wallace, insisting that it should be counted for Mr. Nixon, but both bodies decided to count the vote as cast.2 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.3

To prevent so-called “faithless electors” from departing from the preferences expressed by voters, most states require electors to pledge to support their parties’ nominees.4 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.5 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.” 6

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.” 7 Noting the long-standing 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.” 8

Ray left open the question of whether states could enforce these pledge requirements through sanctions—a question later considered in Chiafalo v. Washington.9 In Chiafalo, the Court considered a Washington law that provided that electors who failed to comply with a pledge to vote for their party nominees would face a civil fine.10 Three electors who were fined after breaking their pledge in the 2016 presidential election challenged the law.11 The Supreme Court confirmed that a state’s power to appoint an elector includes the “power to condition his appointment,” 12 and further clarified that as long as no other constitutional provision prohibits it, the state’s appointment power also “enables the enforcement of a pledge” through a law such as Washington’s.13 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.” 14 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.15

See Neal Pierce, The Peoples President: The Electoral College in American History and the Direct-Vote Alternative 122–24 (1968). back
115 Cong. Rec. 9–11, 145–71, 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.& Pus. Pol’y 215, 217 (2017). back
Chiafalo v. Washington, No. 19-465, slip op. (U.S. July 6, 2020). back
Ray v. Blair, 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, No. 19-465. 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, No. 19-518, slip op. (U.S. July 6, 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, No. 19-465. back
Id. back
See id. at 9. See also id. at 9 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 U.S. Const. art. II, § 1, cl. 5.” ). back
Id. at 10. back
Id. back
Id. at 13, 16. back