The Court’s pragmatic voices appeared to gain the upper hand in a case about “faithless electors.”
When the Supreme Court heard arguments Wednesday over whether states can control “faithless electors” — members of the Electoral College who refuse to vote for their state’s winner of the popular vote — the justices didn’t divide along traditional partisan lines.
Chiafalo v. Washington and Colorado Department of State v. Baca, two consolidated faithless electors cases the Supreme Court heard on Wednesday, are unusual ones. They involve fundamental questions about how the United States conducts its presidential elections, but the cases are not especially ideological or partisan: Both the Republican National Committee and the Colorado Democratic Party filed briefs on the same side.
The state of Washington fines faithless electors, while Colorado removes and replaces faithless electors before they can cast a ballot. The question in both Chiafalo and Baca is whether states are allowed to exercise such control over members of the Electoral College after they are appointed.
In election-related cases, the justices often split along partisan lines, with the Court’s five Republicans preferring the outcome favored by the GOP, and its four Democrats dissenting. But, in Chiafalo and Baca, both political parties filed briefs opposing faithless electors and supporting states’ power to ensure that electors vote for the candidate they are pledged to support.
These cases do not present a particularly partisan conflict, and the judges appeared to divide along different lines. Formalists, like Justices Clarence Thomas and Elena Kagan, largely asked about what the text of the Constitution has to say about faithless electors. Meanwhile, pragmatists like Justice Stephen Breyer or Samuel Alito, worried more about how a constitutional rule permitting faithless electors would play out in practice.
There are strong formalistic arguments on both sides of this case, and those arguments turn on arcane interpretations of words like “appoint” and “ballot.” It is far from clear how judges should decide this case based solely on the text of the Constitution and its history.
Yet, as several justices noted, there are strong pragmatic reasons not to permit faithless electors, and those pragmatic concerns appeared likely to carry the day. As Justice Brett Kavanaugh remarked at one point, there is an “avoid chaos principle of judging.” If a case is a close call, and one outcome is likely to cause chaos, then judges should choose the other outcome.
How we got here
Chiafalo and Baca turn on a very narrow distinction. In Ray v. Blair (1952), the Supreme Court held that, before someone is appointed as an elector, they may be required to pledge that they will support their party’s nominee. But Ray also left unanswered what can happen to that elector if they violate their pledge.
The Constitution provides that each state shall appoint electors “in such manner as the Legislature thereof may direct,” but all 50 states use a popular election to select members of the Electoral College (although Maine and Nebraska award some electoral votes to the winner of each individual congressional district, rather than awarding all of their state’s electors to the winner of the state as a whole). Ray suggests that, before an elector is appointed, the state has broad power to impose conditions on electors.
But what happens after someone is formally appointed to the Electoral College? Larry Lessig, a Harvard Law professor and the lawyer representing faithless electors in Chiafalo and Baca, suggested in his briefs that the state’s power to control an elector ends the moment that elector joins the Electoral College.
Think of it this way: The president appoints federal judges with the consent of the Senate, but neither the president nor the Senate may remove a federal judge because they disagree with how the judge voted in a particular case. Similarly, members of Congress are chosen by voters, but once a senator begins their six-year term, they cannot be removed during that term if they break a pledge that they made to voters in order to get elected.
Colorado and Washington, meanwhile, argue that judges and members of Congress are exceptions to a broader rule. As Washington claims in its brief, “the ‘default rule’ is that the power to ‘appoint’ includes the power to remove.” Judges cannot be removed by the person who appointed them because the Constitution explicitly states that federal judges “shall hold their offices during good behaviour,” and senators cannot be removed because the Constitution provides that senators shall serve “for six years.”
But absent constitutional language indicating that members of the Electoral College must serve for a particular amount of time, the states claim, the default rule is that the same state that appointed an elector can remove that elector.
As a matter of constitutional text, neither of these arguments is a slam dunk. The Court’s formalists — justices who tend to rely more on technical legal arguments and less on how the law functions in practice — appeared quite aware of that fact. At one point, Justice Kagan asked Washington state solicitor general Noah Purcell if he could simply explain the best textualist argument for his position. Justice Thomas proposed a completely different textual argument that played only a small role in the parties’ briefs.
The Tenth Amendment provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Thomas appeared to suggest that, under this amendment, a close question should be resolved in favor of the states. After all, if the Constitution does not prohibit the states from acting in a certain way, then the Tenth Amendment suggests that they may act that way.
But the strongest, and most forceful arguments against faithless electors came from the Court’s pragmatic wing — the justices most likely to weigh the practical impacts of their rulings.
There are powerful pragmatic arguments against faithless electors
Suppose, Justice Alito worried at one point, that an elector is bribed to vote for a particular candidate after they are appointed. Are states really powerless to remove an elector who is tainted by corruption?
Alito was also the first justice to warn that faithless electors could trigger “chaos.” If an election were close, and faithless electors are allowed to do whatever they want, the losing political party would likely launch a campaign to influence electors. The result would be months of uncertainty about who actually won the presidential election. And the eventual “winner” might be so tainted by a perception that they won through logrolling and skulduggery that many Americans would not accept that president as legitimate.
Indeed, as Purcell argued at one point, the practical consequences of allowing faithless electors could be even worse. A foreign power might seek to bribe electors in order to install a president who is sympathetic to that nation. Or they might conduct cyberattacks to uncover embarrassing personal information about electors, and then blackmail those electors into voting for a particular candidate.
These potential scenarios apparently bothered Justice Kavanaugh enough to trigger his suggestion that the Court should apply a “tiebreaker” in favor of the view that is most likely to “avoid chaos.”
Meanwhile Justice Neil Gorsuch, who ordinarily takes a formalistic approach to the law, raised a different pragmatic concern. If Ray allows a state to require electors to pledge to vote a certain way, why couldn’t the state require them to make that pledge under oath? And then, if the elector violates their oath, why couldn’t they be prosecuted for perjury?
The distinction between regulating electors before they are appointed, and regulating them after they are appointed, Gorsuch appeared to suggest, doesn’t actually mean very much.
Justice Sonia Sotomayor offered a third reason to reject faithless electors. Even if the framers originally expected electors to exercise individual discretion, the historical practice stretching back for nearly all of American history is that electors cast a vote for whoever their state supports. This history, Sotomayor suggested, offers a practical gloss on the Constitution, which judges should respect.
Current circumstances, though, make it harder than usual to assess how the Court views a particular case from oral arguments. Ordinary, in-person arguments are a scrum, where any justice can interrupt the lawyers at any time. In this setting, justices tend to interject a lot when they disagree with a particular lawyer, often staying silent while the side they support is arguing.
In an age of social distancing and telephone arguments, however, the Court uses a different format. Each justice is given a few minutes to ask questions of each lawyer, with no interruptions from their colleagues. That means that every justice tends to ask questions of both sides, even if they are already inclined to support one side or the other.
So it is not entirely clear how each justice will vote in Chiafalo and Baca. But there also appeared to be considerable support for the pragmatic concerns raised by Alito, Sotomayor, Kavanaugh, and others. It appears likely that the Supreme Court will not allow faithless electors. And they may even oppose faithless electors by a very lopsided margin.
That’s good news if, like much of the Court’s pragmatic wing, you fear the chaos that could result from placing the power to select the president in the hands of a few hundred largely unknown individuals.
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