Supreme Court Clarifies Rules for Electoral College: States May Restrict Faithless Electors

Legal Sidebari

Supreme Court Clarifies Rules for Electoral
College: States May Restrict Faithless Electors
July 10, 2020
On July 6, 2020, the Supreme Court unanimously held that states may punish or replace presidential
electors who refuse to cast their ballots for the candidate chosen by the voters of their state. In the case
Chiafalo v. Washington, a majority of the Court held that the State of Washington’s constitutional
authority to appoint electors includes the power to impose a $1,000 fine against electors who violate their
pledge to support the candidate chosen in the state’s popular vote. In the related case Colorado
Department of State v. Baca, the Court upheld on the same grounds Colorado’s policy of replacing
electors who attempt to cast a ballot for a person who did not win the state’s popular vote. This Legal
Sidebar explains the Court’s decisions and reviews their broader implications.
Background
Article II of the Constitution provides, “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.” Under the Twelfth Amendment, the electors “meet in
their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not
be an inhabitant of the same state with themselves.”
Today, states employ a two-step process to appoint their electors. First, states ask each political party to
submit a slate of electors that it would like to represent the state. Second, states hold a general election in
November—what is widely regarded as Election Day—where voters register their preference among
candidates for President and Vice President. The party that wins the most statewide votes for its
presidential ticket generally gets to have its slate of electors appointed by the state. (Forty-eight states and
the District of Columbia allot all their electoral votes to the winner of the statewide popular vote; Maine
and Nebraska allot two electors to the winner of the statewide popular vote and one elector to the winner
of the popular vote in each of the state’s congressional districts.)
Because political parties choose the electors in the first instance, electors are expected to be loyal to their
party and cast ballots for the party’s ticket if its candidates win the state vote. But that expectation has not
always come true. Occasionally, so-called “faithless electors” cast ballots for candidates other than those
their parties prefer—sometimes as a form of political protest, sometimes as a strategic ploy, and
sometimes, apparently, by mistake. To curb these surprises, 32 states and the District of Columbia have
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enacted laws requiring electors to pledge to cast their votes for their parties’ nominees for President and
Vice President, with 15 states providing some form of sanction for electors who violate their pledge. The
Supreme Court upheld the constitutionality of these pledge requirements in the 1952 case Ray v. Blair but
had not yet weighed in on whether states may enforce the requirements with sanctions.
Washington and Colorado provide two representative illustrations of how some states seek to ensure that
electors cast ballots for candidates supported by the states’ voters. Washington requires prospective
electors to pledge to support their party’s candidates and, in 2016, subjected electors who violated their
pledge to a $1,000 fine. This punishment was imposed on Brian Chiafalo and two other Democratic
electors who were appointed after Hillary Clinton won the state’s popular vote but who chose instead to
cast their ballots for Colin Powell. The electors challenged the fines as unconstitutional, arguing that
states are powerless to restrict an elector’s exercise of discretion. The Washington Supreme Court
disagreed, reasoning that nothing in the Constitution demands absolute freedom of choice for electors,
and upheld the punishment.
Colorado, in turn, discards the ballot of any elector who fails to vote for the presidential ticket that won
the most votes in the state’s popular election, replacing rogue electors with alternates until all electors
have submitted ballots for the ticket that received the most votes on Election Day. Democratic elector
Michael Baca suffered this fate in 2016 after attempting to cast his ballot for John Kasich; his vote was
nullified, and he was removed from his position as elector. Like the Washington electors, he challenged
his state’s law as an unconstitutional interference with what he viewed as a discretionary vote. But unlike
the Washington court, the Tenth Circuit ruled in favor of elector discretion and struck down Colorado’s
law on the grounds that electors have a constitutional right to vote for whomever they wish. The Supreme
Court agreed to hear appeals from these two cases to settle the issue.
Supreme Court Decision
In Chiafalo v. Washington, the Supreme Court unanimously held that states may penalize electors who fail
to cast their ballots for the presidential ticket that won the state’s popular vote. Justice Kagan authored a
majority opinion joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Alito, Sotomayor,
Gorsuch, and Kavanaugh, holding that state authority under Article II to appoint electors includes the
power to require as a condition of appointment that electors pledge to support the state’s popular vote
winner and—as relevant here—to punish electors who violate that pledge. Justice Thomas authored an
opinion concurring in the judgment, joined in part by Justice Gorsuch, arguing that states’ power to
prohibit faithless electors is more appropriately rooted in the Tenth Amendment. In Colorado Department
of State v. Baca, the Court published a one-sentence, per curiam order reversing the Tenth Circuit for the
reasons explained by the majority in Chiafalo. Justice Sotomayor was recused from Baca because of her
friendship with one of the parties.
The majority opinion in Chiafalo read Article II of the Constitution to provide states with a broad power
to appoint electors and determined that any limits on that power could be derived only from some other
constitutional provision. Reviewing the Constitution’s “barebones” text about the Electoral College
process, the Court concluded that neither Article II nor any other part of the Constitution limited a state’s
ability to require electors to cast their ballots for the candidate that won the state’s popular vote.
According to Justice Kagan, Article II empowers states to appoint electors, and the Twelfth Amendment
provides simple procedures for how the electors’ ballots are to be submitted and counted. “Appointments
and procedures,” the Court summarized, “and … that is all.” The Court reasoned that if the Constitution’s
drafters intended to secure electors’ prerogative to vote according to their own judgment, as some
including Alexander Hamilton seem to have hoped, they could have adopted language from contemporary
state constitutions that included explicit safeguards for the autonomy of electoral bodies that selected state
officials. But the Court concluded the Twelfth Amendment’s terse instruction that electors shall “vote by
ballot” imposes no such requirement of elector independence.

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The Court emphasized that the Twelfth Amendment was necessary, at least in part, to facilitate electors’
practice of party-line voting. Before the Amendment was ratified in 1804, each elector cast two votes,
with no distinction made between electoral votes for President and electoral votes for Vice President. The
candidate receiving a majority of votes became President and the runner-up became Vice President. The
problem, which soon became apparent, was that if electors for the most popular party submitted their two
ballots for the party’s candidates for President and Vice President, those candidates would tie and no one
would receive the requisite majority—as occurred in 1800 (and, as the Court recognized, was later
immortalized in the Broadway hit Hamilton). Alternatively, if those electors intentionally cast fewer votes
for the intended Vice President, they risked allowing another party’s presidential candidate to sneak into
the top two. This was no hypothetical fear—the 1796 election resulted in a President and Vice President
from rival parties. “By allowing the electors to vote separately for the two offices,” the Chiafalo Court
concluded, “the Twelfth Amendment made party-line voting safe.” An Amendment ratified to
accommodate party-line voting, the Court reasoned, should not be interpreted to prevent electors from
binding themselves with declarations of party loyalty.
Noting that historical practice can help settle the meaning of disputed constitutional terms, the Court
determined that “[e]lectors have only rarely exercised discretion in casting their ballots for President.”
According to the Court’s tally, only one half of 1 percent of all electoral votes in American history have
been for a person other than the candidate who won the popular vote in the elector’s home state, and these
anomalous votes have never come close to affecting an outcome. Electors have been declaring their
loyalty to their party’s candidates since the nation’s first contested election in 1796, and by the early
1900s states began requiring prospective electors to execute such a pledge as a condition of appointment.
Washington’s law, the Court concluded, “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.”
The Court cautioned that states’ power under Article II to condition the appointment of electors, while
broad, is not limitless. For example, a state may not select its electors in a manner that violates the Equal
Protection Clause, and a state may not restrict which candidates electors may vote for in a way that
conflicts with the Presidential Qualifications Clause (perhaps, for example, by requiring electors to pledge
to vote only for candidates who possess previous government experience). Further, the Court explicitly
refrained from deciding whether a state could enforce its pledge requirements if the state’s popular vote
winner died between Election Day and the date that electors submit their ballots.
In a separate opinion concurring in the judgment, Justice Thomas agreed with the majority that states
have the power to require presidential electors to vote for the candidate chosen by their state. But in his
view, that power is not derived from Article II or any other Electoral College provision of the
Constitution. Rather, he would resolve the case under the Tenth Amendment, which provides, “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.” Because the Constitution does not explicitly prohibit
states from enacting laws that punish or remove faithless electors, he would hold those laws are a valid
exercise of state power. Justice Gorsuch joined the majority opinion and the portion of Justice Thomas’s
concurrence urging that constitutional silence should be resolved in the states’ favor, suggesting his view
is that the state laws could be upheld both on Article II and Tenth Amendment grounds.
Implications for Congress
The Twelfth Amendment assigns Congress the role of counting the votes submitted by electors and
declaring a winner. Historically, Congress’s counting role has included the task of resolving controversies
when a state’s electoral votes are disputed. By statute, Members of Congress may object to individual
electoral votes or to state returns as a whole, and the objections are resolved by separate votes in the
House and Senate. Because the Supreme Court affirmed states’ right to replace faithless electors, and
Congress defers to states to decide in the first instance “any controversy or contest concerning the

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appointment of” electors, the Court’s decision may reduce the likelihood that faithless elector disputes
will fall to Congress. But the potential for controversy persists in states that require electors to vote for the
state’s popular vote winner but fail to attach any consequences for electors who vote for someone else. In
such a scenario, Members of Congress may need to decide internally whether to count the anomalous
votes.
In the event that electors fail to agree on a President and Vice President by majority vote, the Twelfth
Amendment provides that the House of Representative shall choose the President and the Senate shall
choose the Vice President. Faithless electors have never deprived a presidential candidate of an electoral
majority, and by permitting states to punish or replace electors who vote independently, the Supreme
Court’s decision makes it even less likely that faithless electors will splinter the vote and throw the
election to the House and Senate.
The Supreme Court recognized that permitting states to bind electors to the state’s popular vote
winner accords with “the trust of a Nation that here, We the People rule.” That democratic
presumption notwithstanding, the Electoral College does limit popular rule by enabling a
candidate to win the vote in enough individual states to accumulate an Electoral College majority
despite failing to win the most votes nationally. To prevent this discrepancy, some Members of
Congress have proposed amending the Constitution to abolish the Electoral College. As another
means to a similar end, 15 states and the District of Columbia have enacted laws under the
National Popular Vote initiative that would appoint electors pledged to the party that wins the
national popular vote rather than to the party that wins the state’s popular vote. (These laws
would take effect only if they are enacted by enough states that collectively control a majority of
the 538 electoral votes; currently, the scheme needs the support of states with an additional 74
electoral votes.) By affirming that Article II allows each state to appoint electors “in whatever
way it likes,” the Supreme Court’s opinion in Chiafalo could be read to suggest the plan, if
enacted, would survive constitutional challenge.

Author Information

Jacob D. Shelly

Legislative Attorney




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