How is the President of the United States elected? It seems like an easy question. Obviously, the people vote for their preferred candidate, and the candidate with the most votes wins, right?
No, the states’ delegations of electors elect the President of the United States in-line with Article II Section I and the Twelfth Amendment of the US Constitution. These two provisions define the process for electing the President. When the people go to vote on the first Tuesday in November every four years, they do not actually vote for a candidate. They vote for a slate of electors nominated by each political party. These electors then cast their votes for President. Normally, electors vote in line with the wishes of their state and vote for the candidate that wins their state’s popular vote, but they do not have to vote that way. In the same way members of Congress can vote their conscience, electors can as well. These electors are known as faithless electors because they cast an electoral vote contrary to the wishes of their state. To remedy this, a majority of the states mandate their electors to vote in line with the popular vote, and some threaten removal or fine.
Chiafalo v. Washington centers around one such law and its applicability to three Washington state electors who refused to cast their electoral votes for Hillary Clinton in the 2016 US Presidential Election. Are states permitted to mandate how an elector casts their vote via fines and the threat of removal? This article seeks to examine past precedent regarding faithless electors and to examine Chiafalo in light of that history. Also, it will infer the implications arising from rulings in either direction.
Since the Constitution has been in force, 167 electors have chosen to ignore the wishes of their state during an election. The faithless electors in these cases have only affected an election once: the 1836 Vice Presidential Election. Subsequently, the Senate elected the popular vote winner for Vice President in that case.
Returning to the case at hand, the Supreme Court granted certiorari by consolidating the case with Colorado Department of State v. Baca, No. 19-518. Chiafalo et al, the petitioners argue the Constitution does not grant the states the ability to coerce presidential electors into voting a certain way. They assert any such coercion or penalty subsequently infringes upon their First Amendment rights. To reinforce their argument, the petitioners point to the glaring divergence of opinions rendered on the matter. “The decisions of the Washington Supreme Court and the Tenth Circuit are opposed on every material point.”
Delving into the petition for certiorari, the material points of conflict between state and federal authority are over electors, the states’ authority to interfere with federal functions, and the meaning of constitutional text. On the question of states’ authority over electors, the petitioners argue state authority ends at the appointment of electors. Under the Constitution, the states have the sole power to appoint their electors by any means. In practice, the political parties nominate slates of electors who are then appointed after the popular vote. On the second point, the Supremacy Clause bars states from impeding or interfering with any valid federal function. Lastly, the Washington Supreme Court ignored key procedural mechanisms, definitions, and constitutional intent when rendering their decision.
In rebuttal, the respondents, the state governments argue each material point is satisfied as they rely on a position the Constitution grants an absolute appointment power to the states. Elector conduct after appointment is within state power to regulate according to the Washington Supreme Court. This extends to voting and enforcement. Due to this constitutional grant of authority, the states are immunized against a Supremacy Clause claim.
In looking to precedent on the matter, the Court must examine cases pertaining to the federalist structure of the United States and presidential elections. Pointing to McCulloch v. Maryland, the petitioners seek to deflate the Washington Supreme Court’s disposition of Supremacy Clause claims. In their petition for certiorari, the petitioners cited the Washington court’s attempt at narrowing the Supremacy Clause’s application to when states, “engage in activity that is specifically conferred to the federal government.” McCulloch settled this question by holding unconstitutional any state action in conflict with a valid federal function, including implied powers.
While precedent is very thin on the matter of presidential elections, the current dispute must look to Ray v. Blair. The decision was over an Alabama law allowing each political party to require its electors declare an oath to support their nominee. In this case, the Court upheld the law on the grounds that the oath was a valid exercise of state appointment powers. Ray holds that electors, while they may not be “federal officers,” perform “federal functions.” The respondents argue Ray “rejects unfettered elector discretion.” Petitioners point to another section of Ray where the Court cautioned these pledges could be unenforceable as they may be “violative of an assumed constitutional freedom of the elector under the constitution to vote as he may choose in the electoral college.” In the petitioners’ view, the respondents disposed of this important caveat to support their absolutist position.
When it comes time for the Court to hear oral arguments, the importance of their opinion cannot be overstated. This will be a landmark case for the Court to make a decisive opinion and remain free from partisan attacks in response. A bold and clear decision will stabilize the rules for future electoral competitions that are closely disputed, like the 2000 US Presidential Election.
On one hand, a ruling for the petitioners would immediately supersede faithless elector laws in 32 states and the District of Columbia. Furthermore, it may open the door to a larger role electors play in deciding the President rather than voting in-line with state popular votes. This ruling would protect the electors’ First Amendment right to free expression. Interestingly, a ruling this way may embolden efforts to abolish the electoral college like the increasingly popular direct popular vote plan. Other efforts fall short in support compared to the direct election approach according to a Gallup poll taken in 2019.
On the other hand, a ruling for the state governments would firmly bind electors to voting in-line with their states’ interests. While this would clarify elector disputes, it will create a chimera of jurisdiction between the federal and state governments. If the ruling touches the First Amendment question, electors will be temporarily subjected to otherwise unconstitutional limitations on their free expression. Chiafalo v. Washington will certainly be a landmark case due to a remarkable alignment of legal stars. The Court’s decision will decidedly settle the question of faithless electors, but a decisive ruling will either place the system’s existence in jeopardy or keep the status quo