Electoral College Electors Do Not Have Discretion To Vote Contrary to Their State’s Voters 

On July 6, the U.S. Supreme Court decided two cases about so-called “faithless” electors who in the 2016 Electoral College voted contrary to the majority of their state’s voters in the popular presidential election of that year.[1]

The headnotes in the Chiafalo case that the Court held that a “State may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice for President.”

The Opinion of the Court in Chiafalo was written by Justice Elena Kagan and joined by all the other justices except Justice Thomas, who filed a separate concurring opinion.

The Court’s Opinion first set forth an extensive review of the history of Article II of the Constitution that established the Electoral College,[2] the Twelfth Amendment of 1804 that required separate votes for President and Vice President in the Electoral College[3] and other relevant history. The Opinion then concluded as follows:

• “Article and the Twelfth Amendment give States broad power over electors, and give electors themselves no rights. Early in our history, States decided to tie electors to the presidential choices of others, whether legislatures or citizens. Except that legislatures no longer play a role, that practice has continued for more than 200 years. Among the devices States have long used to achieve their object are pledge laws, designed to impress on electors their role as agents of others. A State follows in the same tradition if, like Washington, it chooses to sanction an elector for breaching his promise. [The State of Washington imposed a civil fine of up to $1,000 for breach of such a pledge.] Then too, the State instructs its electors that they have no ground for reversing the vote of millions of its citizens. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.”

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[1] Chiafalo v. Washington, No. 19-465 (U.S. Sup Ct. July 6, 2020); Colorado Dept of State v. Baca, No. 19-518 ((per curiam) U.S. Sup. Ct. July 6, 2020)(“The judgement of the United States Court of Appeals for the Tenth circuit is reversed for the reasons stated in Chiafalo v. Washington.” ) See also Liptak, States May curb ‘Faithless Electors,’ Supreme Court Rules, N.Y. times (July 6, 2020); Barnes, Supreme Court says states may require presidential electors to support popular winner, Wash. Post (July 6, 2020).

[2] Article II, sec. 1, cl. 2 states: “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.”

[3] The Twelfth Amendment states: “The Electors shall meet in their respective states and vote by ballot for President and Vice-President . . .; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to [Congress, where] the votes shall then be counted.” The Twelfth Amendment goes on to say, “ The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed . . . .The person having the greatest number of votes as Vice President shall be the Vice President, if such number be a majority of the whole number of Electors appointed . . . “ [This Amendment also established procedures if there is no one with a majority of the votes for either or both offices.]