This article was written by Andrew Vazquez ’22, relying on research and analysis that Jenny Brejt ’20 conducted for the Democracy Clinic’s study of the Electoral College. Students in the Democracy Clinic develop non-partisan reforms to the nation’s institutions. The clinic’s report on the Electoral College is among a slate of reports released earlier this year.
In a case that has implications for the upcoming presidential election, the Supreme Court ruled Monday that State laws enforcing a pledge by a member of the Electoral College to vote for a specific candidate are constitutional. In the Court’s opinion in Chiafalo v. Washington, Justice Elena Kagan reiterated states’ plenary power over conducting elections. Justice Kagan was joined unanimously in the judgment, with Justice Thomas issuing a concurring opinion.
Although the Court approved checks on “faithless electors,” there is still uncertainty surrounding the role of electors. A majority of states still have laws that allow for counting votes of electors who break their pledges to vote for the winner of the popular vote in their states. An amendment to the Constitution eliminating the office of elector is the only way to ensure stability in our presidential elections.
When Donald Trump won enough electoral votes in the 2016 election to become president but lost the popular vote to Hillary Clinton, the Electoral College drew ire across the country. Opposition to Trump taking office spurred a campaign to usurp the election results by pressuring electors to “vote their conscience” and cast their ballots for a consensus candidate, such as John Kasich. A group of electors, called the “Hamilton Electors,” believed they were embodying the will of the Constitution’s framers by acting as a stop guard against Trump, who they viewed as uniquely unfit for the presidency. But Hamilton Electors in multiple states were undermined by statutes that bound them to their states’ popular votes.
The State of Washington fined electors who cast their votes contrary to their pledges. Three electors from the 2016 election who violated their pledges brought suit against Washington state, claiming that the fine violated their First Amendment rights and Article II of the Constitution. Simultaneous with its decision in Chiafalo, the Court decided Baca v. Colorado. Michael Baca, a former elector from Colorado and a leader of the anti-Trump Electoral College effort, attempted to vote for John Kasich instead of Hillary Clinton, but Colorado’s faithless elector law triggered his automatic replacement. Baca and two other electors brought challenges to the Colorado statute that removed them from office and replaced them with alternate electors.
Elections in which the electoral vote is close will always be uncertain if the electors are allowed to vote with discretion. Al Gore lost the 2000 election by five electoral votes, despite winning the popular vote. A handful of unbound electors could have swayed the election for Gore. To ensure that electors do not override voters, thirty-two states and the District of Columbia have laws that require electors to pledge their support to a presidential candidate prior to their appointment. Nineteen states with anti-faithless elector laws still count a faithless elector’s vote even if it is contrary to their pledge. Thirteen states interpret an electors’ faithless vote as a resignation and replace them with an alternate elector. Five out of the thirty-two states also fine electors who violate their pledges. The Court’s ruling in Chiafalo upheld the constitutionality of these laws.
Justice Kagan’s opinion built off of the Court’s 1952 decision in Ray v. Blair, which upheld requirements that electors pledge to support a candidate prior to their appointment. Article 2, Section 1 of the Constitution allows States to appoint electors “in such Manner as the Legislature thereof may direct.” Ray held that States may condition the appointment of an elector in any way it sees it fit, including through pledges. Ray, however, left open the question of whether these pledges were legally enforceable.
In ruling that the pledge requirements are enforceable, the Court in Chiafalo relied on the wording in Article 2 and the Twelfth Amendment as well as the established practices of presidential elections. Justice Kagan’s opinion noted that the Framers designed the Electoral College to be a deliberative body, but she asserted that this intention was not conveyed by the wording of Article 2, Section 1. The wording, quoted above, was left ambiguous, Justice Kagan observed, in contrast to contemporaneous state constitutions that outlined systems similar to the Electoral College and specifically called for elector discretion.
The Electors who brought the suit maintained that the words “vote by ballot” in the Twelfth Amendment necessitated elector discretion. The Court dismissed this argument by citing many examples in which a person casts a vote without discretion, such as casting a proxy vote. Justice Kagan reasoned that, if the Framers wanted electors to have permanent discretion in voting for the president, they would have written the Constitution to specifically say so.
The second basis of the Court’s opinion emphasized the long history of pledged electors and its importance for constitutional interpretation. Since 1796, states have selected electors who pledged to vote for a designated candidate. This development was compounded with the ratification in 1804 of the Twelfth Amendment, which provided for separate votes for the president and vice president. The Twelfth Amendment, passed in the wake of a dysfunctional election in 1800, created room for party-line voting for both executive offices. Additionally, scholars throughout the 19th century and the Court in McPherson v. Blacker asserted that the electors were chosen merely to convey the will of those that appointed them, whether that be via the state legislature or the popular vote. Furthermore, many States only list the names of the presidential candidates on ballots, under the assumption that the electors will vote according to their pledges. This lengthy history, Justice Kagan concluded, permits the States to bind electors to their pledges.
What does Chiafalo tell us about the Constitution and the future of the Electoral College? First, the decision reaffirms that established practices can influence interpretations of the Constitution. In this case, past practice was given greater weight than the Framers’ clear intent. Although Article II does not say it, the Framers unambiguously believed that the electors had the freedom to choose the president. Nevertheless, the Supreme Court reasoned that the subsequent two hundred years of electoral practice outweighed these beliefs.
The Framers created the Electoral College as a compromise between opposing plans for selecting the president: direct popular election and selection by the legislature. Alexander Hamilton described the Electoral College as a body “capable of analyzing the qualities adapted to the station and acting under circumstances favorable to deliberation…” But the deliberative nature of the Electoral College never came to fruition, as the College’s discretion began to degrade as soon as 1796. Instead of deliberating on the election of the president, the electors pledged themselves to support candidates favored by the emerging political parties. The voters would then vote for the electors as proxies for their preferred candidate for president. This unanticipated development ended the Framers’ vision of a deliberative body made up of the greatest political minds in the country.
Out of 58 presidential elections in American history, there have only been 165 faithless votes for president or vice president, 71 of which the electors cast because their pledged candidate died before the vote took place. Over the course of the last century, many scholars relegated the role of electors to one of ceremony, akin to the process of the Crown in England giving its assent to acts passed by Parliament. These scholars’ arguments, which were validated by Justice Kagan’s opinion, asserted that the two hundred plus years of electoral history created a tradition by which electors merely carry out the will of voters.
Members of Congress have proposed over 700 constitutional amendments to change the Electoral College. The strongest effort for reform was sparked by Segregationist George Wallace’s attempt in 1968 to use electors’ discretion to enhance his political clout. Wallace strongly opposed the Civil Rights Movement and sought to use his concentrated support among white southerners to garner enough electoral votes to sway the 1968 presidential election. Knowing he had no chance of winning outright as a third-party candidate, Wallace intended to use his pledged electors to play kingmaker, and force concessions out of one of the candidates to support segregation. Although he won the votes of five states, Wallace’s plan never came to fruition. But the fear of his threat prompted many to advocate for reforming the Electoral College. An amendment proposed in 1969 seeking to replace the Electoral College with a direct national popular vote passed the House by an overwhelming majority but was filibustered in the Senate.
Concern that faithless electors can disrupt presidential elections remains—and may have impacted the Court’s decisions in Chiafalo and Baca. During oral arguments, Justice Kavanaugh appeared to fear that unbound electors would create chaos by possibly deciding elections against the will of the people. So how do we best avoid the “chaos” that the Court feared? The amalgamation of State laws, even when sanctioned by the Supreme Court, do not provide complete protection from volatility in presidential elections. Eighteen states still have no requirement binding electors to their state’s popular vote. A majority of states still count faithless votes. And there is no uniform “faithless elector” statute across the states. “Chaos” can still reign. The only way to truly rid our country of uncertainty over the discretion of electors is to abolish the role of electors. Voters’ choice for president does not need to be sanctioned by a group of gatekeeping political party members.
A constitutional amendment to rid our country of this anachronistic and ceremonial role will quell fears that unbound electors are a recipe for turmoil. Also, the eradication of the office of presidential elector is not partisan; candidates of both parties are equally vulnerable to losing faithless electors’ votes. An amendment will stabilize our presidential elections and prevent an undemocratic body from potentially overriding the will of millions of voters. If all of the States that already restrict elector discretion approved the amendment, only two more states would need to ratify it. These states are represented by 267 members of the House of Representatives and 64 senators—close to the two-thirds majority required to pass an amendment.
This amendment must consider the concerns of those who advocate for allowing unbound electors. These advocates’ main concern relates to what would happen if a candidate died after the general election, but prior to the Electoral College vote. These scholars argue that electors are crucial in this scenario because they could use their discretion to select a qualified replacement candidate. An amendment abolishing electors must incorporate presidential succession guidelines mirroring those in the Twenty-Fifth Amendment. If a presidential candidate dies before the Electoral College meets, the electoral votes should be allocated to the deceased candidate’s vice-presidential running mate. Congress should also provide for a scenario where the vice-president elect also dies or there is no clear vice-president for the incoming administration.
In the meantime, states should adopt a uniform statute that removes and replaces nonconforming electors with alternates who will vote according to each state’s respective popular vote. The law should contain exceptions for scenarios like the ones described above. The adoption of a uniform statute will avoid uncertainty in contentious presidential elections until an amendment is passed. Nevertheless, an amendment is the only way to ensure that the will of the people is carried out.