As former Vice President Al Gore and former Secretary of State Hillary Clinton can attest, the majority vote of the people of the United States of America doesn’t actually determine who is elected president. Instead, the Constitution entrusts that decision to presidential electors, appointed on the day of the election in the manner each state and the District of Columbia adopts; for most of American history, electors themselves have been chosen through some form of popular vote.
So although the competing presidential and vice presidential candidates are generally listed on voters’ ballots and the electors rarely are, when citizens vote for one ticket or the other every fourth November, they are really voting for the electors pledged to support the corresponding candidates.
But it wasn’t until the 20th century that electors were formally required by states to live up to those pledges when casting their Electoral College ballots; enforcement provisions were added even more recently, and only in a minority of states. So during the 2016 elections, when a handful of electors in two states opted to become “faithless” — to abandon the pledges they’d made to the voters who’d elected them — they wound up testing the constitutionality of such state-imposed sanctions, ultimately starting two cases that went to the Supreme Court.
In one case that the Supreme Court decided Monday, three Clinton electors from Washington state had voted for George W. Bush’s first secretary of state, Colin Powell, instead; Washington’s Supreme Court upheld the $1,000 fines imposed under state law. (A fourth had cast his ballot for Faith Spotted Eagle but didn’t sue to overturn the fine.) In the other case, a federal appeals court had held as invalid a Colorado law that ousted a Clinton elector who tried to vote for Gov. John Kasich, R-Ohio, and deterred two others from abandoning their Clinton pledges.
The electors in question had apparently hoped that their behavior would encourage Republican electors in other states to abandon Donald Trump — who won neither Colorado nor Washington — to cast their ballots for someone else. (In Texas, one of Trump’s 38 Electoral College delegates cast his vote for Kasich and another voted for former Rep. Ron Paul, R-Texas.)
In both cases, though, the Supreme Court unanimously decided that the Constitution empowers any state that wishes to sanction electors who violate their pledges to support the presidential and vice presidential candidates who won their states’ popular votes.
For those who bemoan the tendency of the Supreme Court to divide 5-4 on significant, hot button issues, this term’s faithless elector cases presented a welcome change — especially compared to 20 years ago, when a badly divided court in Bush v. Gore left scars by deciding the 2000 presidential election. Here, consistent with longstanding practice, it ruled in a manner that allows states to regulate electors’ discretion — or not. And, more interestingly for court watchers, it reached that result with a majority accepting both that constitutional meaning can evolve and that sometimes courts must consider the consequences of alternative constitutional interpretations.
In the opinion, authored by Justice Elana Kagan and joined by everyone but Justice Clarence Thomas, who wrote a concurrence joined in part by Justice Neil Gorsuch, the court unanimously upheld the Washington decision; in the Colorado case, in which Justice Sonia Sotomayor recused herself, the court overturned the appellate court decision by citing the Washington decision.
In it, Kagan rejected the argument of the “faithless” electors in Washington (and, by extension, Colorado), who had argued that the Constitution’s words —”electors,” “vote,” “ballot” — conferred a discretion, which was reinforced by the founders’ original understanding of how the electors would function. Alexander Hamilton praised the original presidential election system as if “not perfect … at least excellent” in part because, as the plaintiffs noted, it entrusted the decision to “men most capable of analyzing the qualities” needed for the presidency, a statement that supported their view of original intent.
Kagan, though, pointed out that the Constitution’s words are also often used when someone votes a proxy or isn’t afforded discretion and that, even though most electors have long thought they were committed to follow instructions, they’ve been considered to be “electors” who “vote” by “ballot.” And she noted that, even if Hamilton spoke for the founding generation, that intent wasn’t actually written into the Constitution, reflecting the view that it is the constitutional text, not its authors’ intent, that governs.
The longstanding practice of electors during the 19th century had, in fact, been to execute the preferences of those who selected them. States also began listing only presidential and vice presidential candidates on the ballots that voters saw, consistent with the idea that the electors were essentially automatons, not given to exercising discretion separate from those they represented. In the 20th century, some states began to pass laws requiring electors to pledge to vote for the candidates on whose slates they had run. In the mid-20th century, states then began to pass laws imposing sanctions on electors who violated their pledges — a course 15 states have adopted.
Of course, some electors have cast faithless ballots since 1796, but they’ve accounted for fewer than 1 percent of the electoral votes cast in history and have never decided a presidential election. Most of the faithless presidential electors emerged in 1872 when Horace Greeley, the unsuccessful presidential candidate, died in late November 1872 between the popular vote and the meeting of the electors; most of his electors understandably didn’t vote for him. Faithless electors haven’t switched to support the winner; generally, as in 2016, faithless electors have mostly abandoned losing candidates for even more marginal choices. So history might suggest that the question the court decided matters little in the grand scheme of things.
Yet during oral argument, some justices, including Samuel Alito and Brett Kavanaugh, had worried that, in a close election, external efforts might be made to incentivize faithless electoral behavior, and Kavanaugh specifically said the court needed “to look forward” in reaching a decision, not simply at what had previously transpired. Kavanaugh’s statement recognized the importance of pragmatism in constitutional decision-making, even if Kagan’s opinion didn’t invoke that concept.
Monday’s decision doesn’t, of course, require states to secure pledges from electors or impose sanctions on those who deviate; it recognizes that the Constitution gives the states “far-reaching authority over presidential electors absent some other constitutional constraint.” And it’s not clear what broad impact these laws truly have: surely most electors vote faithfully anyway because they are loyal to the party that selected them and prefer its candidates. But while the Colorado law (and others like it) prevented faithless votes entirely, the Washington law didn’t stop its electors from abandoning Clinton; it simply cost the unfaithful electors a penalty.
Nonetheless, it’s possible that a contrary decision would have promoted the idea that electors have discretion and generated organized efforts to encourage independent electoral behavior.
Ultimately, the major principle from the decision may have come in Kagan’s closing, which said laws like Washington’s tell electors “that they have no grounds for reversing the vote of millions of its citizens” because “here, We the People rule.” As anomalous as it may seem to use that concept in a case about the Electoral College, allowing states to eliminate electors’ discretion is surely one step in promoting popular rule.