In a unanimous verdict earlier this week, the U.S. Supreme Court ruled states have the power to punish presidential electors who refuse to vote for the candidate to whom they were pledged. So-called “faithless electors” have never altered the result of an election, but they could if enough of them acted together. Several, like the three in this case — Chiafalo v. Washington — conspired to do so in 2016. Their state government had a law against it and imposed a fine of $1,000 each.
The Supreme Court’s opinion, written by Justice Elena Kagan and joined by six other justices, held that the practice is legal. The remaining two justices agreed, although they had different reasons for doing so. The verdict puts beyond dispute the practice of requiring electors to follow the law and cast their votes not according to their own discretion but as conduits for the voters of their states.
It also does deep harm to the viability of a few fringe ideas of modern leftists. By reinforcing the rules of the Electoral College, the court showed it would have little patience for Democrat efforts to destroy the system of presidential elections enshrined in the Constitution. If they wish to do so, the only method left to them is a constitutional amendment.
Holding Electors Accountable
The plaintiffs in Chiafalo argued that the Founding Fathers intended the Electoral College to be a place for the electors to exercise their individual judgment. The three electors in this case did so by refusing to vote for the candidate to whom they were pledged, Hillary Clinton. The Democrat nominee carried Washington by 15 percentage points, but when she failed to win enough other votes to earn the presidency, some electors schemed to overthrow the will of the voters by refusing to honor their commitments.
Most of those so inclined were Clinton electors, which defeated the purpose. The three in Washington voted for Colin Powell, hoping their choice of a moderate Republican would attract votes from the other side, but they were unsuccessful. Two Trump electors in Texas defected, but he still had 304 that followed the law, more than enough for a majority. The effort was an abject failure.
The Electoral College has always been an imperfect, yet prudent, compromise. It was the first part of the Constitution to fail and was drastically overhauled in 1804 through the Twelfth Amendment, giving us the system we still use today. What the court tells us in Chiafalo is that the system is what it is thanks to legislation and long practice. Love it or hate it, this is the way we elect presidents, and nothing short of a constitutional amendment will change it.
Another Nail in the Coffin For The Popular Vote Movement
Chiafalo will disappoint those who have been desperately trying for years to get around the Electoral College without amending the Constitution. Foremost of this group are advocates of the National Popular Vote Interstate Compact, an agreement among the states to circumvent the Electoral College in favor of a national popular vote. Dreamed up by a law professor after the 2000 election, the compact would pledge those states that ratify it to having their electors vote for the nationwide popular vote winner, even if that candidate did not win their state.
By its own terms, the NPVIC would not come into force until states representing a majority of electoral votes agree to it, so we will not see a test of the idea any time soon. Furthermore, even if the result it was trying to bring about was lawful (it isn’t), as an interstate compact unauthorized by Congress, it would violate the Constitution.
But Chiafalo gives us another reason the NPVIC will never come to pass: the electors, the court says, channel the will of the voters. Whatever their original purpose, they now are not intended to exercise any judgment different from that of the people who elected them.
In explaining why Washington’s law against faithless electors is valid, Kagan gives a brief history of the Electoral College:
Within a few decades, the party system also became the means of translating popular preferences within each State into Electoral College ballots. In the Nation’s earliest elections, state legislatures mostly picked the electors, with the majority party sending a delegation of its choice to the Electoral College. By 1832, though, all States but one had introduced popular presidential elections. … By the early 20th century, citizens in most States voted for the presidential candidate himself; ballots increasingly did not even list the electors. After the popular vote was counted, States appointed the electors chosen by the party whose presidential nominee had won statewide, again expecting that they would vote for that candidate in the Electoral College.
The course of history has shown that the Electoral College has come to be uniform in its purpose. “The Constitution’s text and the Nation’s history both support allowing a State to enforce an elector’s pledge to support his party’s nominee — and the state voters’ choice — for President.”
Practice Makes Permanent
The theory Kagan is talking about here is called “liquidation.” It holds that when the meaning of a constitutional term is unclear from the text but everyone has interpreted and acted upon it in a certain way for a long time, the definition they gave it through their actions becomes permanent.
“Long settled and established practice,” Kagan writes, “may have great weight in a proper interpretation of constitutional provisions.” Quoting James Madison, she says that “a regular course of practice can liquidate & settle the meaning of disputed or indeterminate terms & phrases.”
The plaintiffs in Chiafalo argued that the vision of the founders of an independent Electoral College meant that they should be free to vote as they please. But that vision, even if it was universal among the Constitution’s authors, did not survive the Twelfth Amendment. Additionally, all of our practice since then makes the opposite point.
In fact, Kagan writes, “our whole experience as a Nation points in the opposite direction … 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.”
Chiafalo Affirms the Will of the Voters
Recognizing the longstanding link between the voters and their state’s electors adds one more obstacle to the already shaky legitimacy of the NPVIC. Chiafalo is not just an affirmation of one state’s law; it affirms that the state may have such a law because it reinforces the link between voter and presidential elector.
The NPVIC, on the other hand, requires electors to be faithless in certain circumstances. Where the state votes for a candidate that did not win the so-called national popular vote, the NPVIC requires the state to certify the losing candidate’s electors as representing the presidential voters of their state. It requires, therefore, that a slate of electors representing the will of the state’s voters be displaced by one that does not.
This, along with the Fourteenth Amendment problems explained in this article, suggests that taking the presidential vote away from the people is a constitutional non-starter. As Kagan writes, the current norm “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.”
Chiafalo also makes another project on the left, the recent D.C. statehood effort, more difficult. The Twenty-Third Amendment gave D.C. voters the right to elect three presidential electors. The recently passed House bill to admit D.C. as a state would leave a tiny unpopulated section of the District as the federal capital. That rump district would still have three electoral votes, but no one to elect them. Statehood for D.C. requires that this amendment be repealed.
Statehood advocates wave this away. Writing for Vox, Ian Milhiser argues, “Because the 23rd Amendment provides that the federal district’s electors shall be appointed ‘in such manner as Congress may direct,’ Congress could simply pass a law providing that these three electoral votes will go to whichever presidential candidate would otherwise win the Electoral College.”
Yet awarding electors to people who do not live in the state they represent flies as much in the face of our “long settled and established practice” as the NPVIC does. No one ever understood the words of the Twenty-Third Amendment to mean anything but that those three electors would represent the voters of the federal district, and in practice, they always have, without exception.
If Milhiser is correct, Congress could just assign the power to choose those electors to anyone. Could the president be allowed to choose them? The Supreme Court? The most recent World Series winner? In Milhiser’s dream world, any of these are permissible, if Congress directs it.
Chiafalo returns us to the real world. Electors represent the voters of their states (or, in D.C.’s case, their district.) The Supreme Court has held that the connection is more than just a coincidence. It has become a part of the liquidated constitutional settlement. The connection between the voters and the electors, like the Electoral College, is here to stay until an amendment to the Constitution changes it.