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Zachery Hullinger, Associate Member, University of Cincinnati Law Review
I. Introduction
The United States prides itself in its democratic form of government, and has, in its history, taken steps to become more democratic—including its transition to the direct election of Senators with the Seventeenth Amendment.[1] However, the country has, to this point, consented to the indirect election of its president. The Electoral College can be considered undemocratic not only in its artificial allocation of power to states rather than to the people, but in the ability of individual electors to cast ballots contrary to the express will of the voters. It is well known that President Trump did not win the popular vote in 2016,[2] but that election also saw several “faithless electors” cast ballots for someone other than the winner of their state.[3] For instance, voters from the state of Washington were undoubtedly surprised to see one of their electoral votes go to Faith Spotted Eagle, who appeared nowhere on their ballot.[4]
The Electoral College has individual electors cast presidential ballots on behalf of the state. While voters reasonably expect that their electors will cast ballots for the winner of their state, the Constitution does not require this synchrony, thereby allowing faithless electors to cast ballots for someone other than the popular vote winner. A majority of states have attempted to prevent this practice by passing pledge laws that require electors to pledge their ballots to the winner of the popular vote.[5] However, since these laws are toothless, several states have attempted to enact enforcement mechanisms to either replace or penalize these faithless electors.[6] The Washington Supreme Court upheld the state’s enforcement law in the wake of the 2016 election,[7] whereas the Tenth Circuit ruled Colorado’s pledge enforcement to be unconstitutional a few months later.[8] The Supreme Court of the United States has consolidated these cases on appeal in Colorado Department of State v. Baca.[9]
Part II of this article discusses the history of the Electoral College and faithless electors. Part III discusses the split on pledge enforcements, while Part IV ultimately determines that these pledge enforcements are unconstitutional.
II. The Electoral College
Like much of the Constitution, the Electoral College was a compromise. The delegates to the Constitutional Convention debated opposing plans to have the president elected either by popular vote or appointed by Congress.[10] The Founders eventually settled on the Electoral College, a system born not from a principled desire to respect the electoral wishes of individual states, but as a means to achieve ratification among the smaller states—which demanded inordinate influence over the election of the president.[11] This system was later modified by the Twelfth Amendment, so that electors would vote separately for the President and Vice President,[12] and by the Twenty-Third Amendment, to provide the District of Columbia with electoral votes.[13]
Under the Electoral College system, states appoint electors equal to their total number of Representatives and Senators in Congress.[14] While, to many voters, these electors may simply be a number on the screen during election night, they are real people. In fact, when voters fill in the circle next to a presidential candidate’s name, they are not actually voting for president. Instead, they are voting for an elector who will submit their own ballot.[15] Nobody in the United States actually votes for president, except for the electors. These electors commonly vote for the candidate who won the state, but they have not always done so, and the Constitution does not require them to do so.[16]
As for the selection of these electors, the Constitution provides that states appoint them, but leaves the method of selection to the states’ discretion. In the first presidential election, states had their respective legislatures appoint the electors, with the citizens of each state having no direct say in who would be president.[17] While all states now appoint their electors according to popular vote, the Constitution does not guarantee that the process will be democratic. Not only do citizens not actually vote for the president, they do not, as the Supreme Court has recognized, have a right to vote for the electors who choose the president.[18] Even when states design a democratic system, nothing in the Constitution guarantees that electors will follow the popular vote. For this reason, states have passed pledge laws, which require delegates to pledge their support to the state winner. But these laws are not self-enforcing, so states have implemented enforcement mechanisms to compel compliance with the pledge.
III. Faithless Elector Laws
This section first reviews a prior Supreme Court case on pledge laws, and then discusses the two cases that the Court has consolidated on appeal in Colorado Department of State v. Baca, which split on the constitutionality of enforcing these pledge laws.
A. Ray v. Blair (1952)
In Ray, the state of Alabama gave political parties the power to fix qualifications for their electors, and the Democratic Party required their elector candidates to pledge their support for the Democratic nominee should that nominee win the statewide vote.[19] The Supreme Court upheld this pledge requirement, holding that this process was “an exercise of the state’s right to appoint electors.”[20] The Court went on to say that “even if such promises of candidates for the electoral college are legally unenforceable because violative of an assumed constitutional freedom of the elector…it would not follow that the requirement of a pledge in the primary is unconstitutional.”[21] Thus, Ray did not decide whether these pledges could be enforced, but merely held that the Constitution does not prohibit pledge requirements as a part of the states’ appointment power.
B. Matter of Guerra (2019)
The Washington Supreme Court was the first court to decide whether pledge requirements can be enforced. Under Washington state law, electors are required to pledge their vote for the candidate of their respective party.[22] Those who choose not to honor this pledge may be subject to a civil penalty of up to $1,000.[23] In Guerra, three electors did not honor their pledge to vote for Hillary Clinton, but instead casted their ballots for Colin Powell.[24] The Washington Secretary of State imposed a $1,000 fine on each of these electors—a decision which the electors appealed.[25] The court considered whether electors were permitted to exercise discretion in casting their ballots, noting that “electors were understood to be instruments for the will of those who selected them,”[26] and that they “were expected to support the party nominees.”[27] The court recognized that “some framers had intended the Electoral College electors to exercise independent judgment,” but ultimately rejected the argument that electors can exercise discretion, interpreting Ray to reject the position that the Constitution “demands absolute freedom for presidential electors.”[28]
In addition to rejecting elector discretion, the court rested its holding on the Constitution’s delegation, to states, of the plenary power to appoint electors: “The Constitution does not limit a state’s authority in adding requirements to presidential electors, indeed, it gives to the states absolute authority in the manner of appointing electors.”[29] Eight members of the court joined this opinion, while the lone dissenting judge argued there is “a meaningful difference between the power to appoint and the power to control.”[30] Because the Constitution delegates to states only the power to appoint, the dissent would not have allowed Washington to penalize electors who exercised discretion in their vote.[31]
C. Baca v. Colorado Department of State (2019)
The Tenth Circuit confronted a substantially similar question in Baca, but the pledge enforcement mechanism was far more severe than a $1,000 fine. Mr. Baca cast his vote for John Kasich despite being required by Colorado law to vote for the state’s popular vote winner—Hillary Clinton.[32] Since Mr. Baca had violated this law, the Colorado Secretary of State discarded Mr. Baca’s vote and replaced him with an elector who voted for Hillary Clinton.[33] The Tenth Circuit ruled 2-1 that the removal of Mr. Baca was unconstitutional. The dissenting judge did not express disagreement on the merits, but thought that the case was moot and would have held that Mr. Baca lacked standing.[34]
The Colorado Department of State argued that removing Mr. Baca was constitutional for two reasons: (1) the Constitution does not prevent states from binding or removing electors, so that power is reserved to the states under the Tenth Amendment; or, alternatively, (2) the power to bind or remove electors is part of the states’ express power to appoint electors.[35] The court first rejected any reservation of this power under the Tenth Amendment, because, even though constitutional silence is usually interpreted as state retention, “the Tenth Amendment ‘could only reserve that which existed before.’”[36] The Electoral College did not exist prior to the adoption of the Constitution, so there was no appurtenant state power to be reserved. Thus, all state power over electors must be expressly delegated by the Constitution.
Turning to the Department’s second argument, that the Constitution does expressly delegate the power to bind and remove by providing the states plenary appointment power, the court held that the appointment power does not extend so far. The Supreme Court has held the president’s power to appoint necessarily includes the power to remove, since the president places faith in his subordinates and must exercise control over them in order to discharge his duty that the laws be faithfully executed.[37] The Tenth Circuit, emphasizing that these concerns were unique to the executive, distinguished the states’ appointment power and held that it does not include the power to remove.[38] The court noted that while states are given plenary appointment power, the Constitution “describes the process for selecting a President and Vice President in unusual detail,” and every step after appointment “is expressly delegated to a different body.”[39] The court found that these detailed steps, including the requirement that votes be included in a certified list sent to the President of the Senate, preclude states from exercising power “to interfere once voting begins, to remove an elector…or to appoint a new elector to cast a replacement vote.”[40] Under the Tenth Circuit’s construction, the states’ authority cuts off strictly after they have appointed the electors.
The Tenth Circuit further bolstered this conclusion by determining elector discretion is implied both through the Constitution’s history and its use of the words “elector,” “vote,” and “ballot.”[41] The court noted that while most electors vote for the popular vote winner, “that policy has not forfeited the power of electors generally to exercise discretion,” and indeed none of these anomalous votes had ever been rejected prior to this case.[42] The Department’s arguments, according to the court, were also inconsistent with the Federalist Papers, where Alexander Hamilton said electors were “selected for their ability to ‘analyz[e] the qualities adapted to the station’ of President…and to judiciously consider ‘all the reasons and inducements that were proper to govern their choice.’”[43] While electors have not normally operated as free agents, the Tenth Circuit quoted the Supreme Court as stating that this was “doubtless” the intent of the framers, and that “the original expectation may be said to have been frustrated” by the practical operation of the system.[44] Because the Constitution neither reserves nor delegates the power to bind or remove electors to the states, the Tenth Circuit ultimately held the Department’s removal of Mr. Baca unconstitutional.
IV. Discussion
The Tenth Circuit’s holding regarding the Tenth Amendment, an issue Guerra did not consider, was undoubtedly correct. The states cannot reserve powers they never held. Therefore, the question is whether the Constitution permits states to bind or remove electors, not whether it merely prohibits them from doing so. While Guerra correctly found that nothing in the Constitution prohibits states from imposing these conditions, silence is not enough; this power must be given to the states. The Constitution does not explicitly grant states the power to bind or remove electors, so this power, if it exists, must be located within the states’ appointment power. There are two primary reasons to believe this power does not exist: (1) the appointment power’s natural limits, as instructed by the Constitution’s text, do not extend to removal, and (2) the framers’ intentions in creating the Electoral College, and the history of this institution, suggest that electors should have discretion in casting their ballots.
A. The Appointment Power
The president’s appointment power has been interpreted to include the power to remove, but, as the Tenth Circuit noted, the Supreme Court hinged this interpretation on considerations exclusive to the executive function. As the Court explained in Myers v. U.S., the executive has a duty to ensure the laws are faithfully executed, but he cannot do this without subordinates, whom “he must have the power to remove” without delay the “moment that he loses confidence in the intelligence, ability, judgment, or loyalty of any one of them.”[45] The states do not have an analogous interest in this context, and electors do not hold their position for an indefinite period of time—unlike presidential appointees. Once electors have discharged their duty by voting for the president, they have no continuing role, and the states have no need to exercise control over them. The electors have completed the function for which the states appointed them.
This reasoning does not preclude states from exercising control over electors prior to voting, as was seen with the voting pledge in Ray, but when these actions require and involve the exercise of control during or after the voting process, they fall outside the states’ constitutional role. Guerra went astray on this issue by interpreting Ray too broadly, citing it to support its holding that the Constitution “does not demand absolute freedom of choice for electors” and “does not prevent a state from requiring its electors to vote for its party candidate.”[46] While it is true that Ray permitted a very specific restriction on electors—an unenforceable pledge—it did not reject all elector discretion, including the essential freedom to vote for the candidate of their choosing. Absent any enforcement mechanism, these pledges never actually interfered with an elector’s voting discretion, which is the issue presented by Guerra and Baca.
B. History and Practice
While the above analysis largely disposes of the question, it is also worth considering the history and practice of elector discretion, as they inform the meaning of Article II and the Twelfth Amendment, including the scope of the appointment power. The states have voluntarily adopted practices that allow electors to be directly elected, and electors have commonly aligned themselves with the state electorate. However, as the Supreme Court has recognized, this practical operation is contrary to the framers’ intent.[47] The only way to make sense of the Electoral College is to consider it a system intended to give discretion to electors. It is impossible to understand why the framers would have created electors and yet made them a mere instrument to enact another’s will. The only sensible explanation for this framework is the one Hamilton offered, describing a system that appoints those who are uniquely qualified to select the president. This “qualification” certainly implies the elector can utilize his own judgment and wisdom, since simply following a mandate from the voters requires no qualifications at all.
Voters understandably feel aggrieved when their will is subverted by an elector, but regardless of voter expectations, that was never the intent of the system. And while the practical operation of the Electoral College has seen electors overwhelmingly align with voters, its practice has never mandated this. The Tenth Circuit could find no instances where Congress failed to count a faithless elector’s vote.[48] While the appointment power’s operation and text largely resolves the issue, the history and practice of the Electoral College not only fail to imply state power to control electors, they affirmatively suggest elector discretion.
V. Conclusion
States have used their elector appointment power to make the Electoral College a more democratic institution. States have given the power to select these electors to the people, and required these electors to honor the express will of the citizens. In this regard, the system functions much as though the people are electing the president themselves. But they are not.
The public knows that the Electoral College selects the president, but they still feel some measure of control over the process. When they fill in the bubble next to a presidential candidate’s name, they understandably believe that they are actually voting for that candidate, even if they know that the winner of the nationwide popular vote may not become president. Faithless electors threaten to expose the mirage of the Electoral College, and lay the institution bare for the country to see. Properly understood, the Constitution will always permit, until amended, electors who disregard the people’s will, and will always keep the people removed from this essential function of its democracy.
[1] U. S. Const. amend. XVII.
[2] Sarah Begley, Hillary Clinton Leads by 2.8 Million in Final Popular Vote Count, Time (Dec. 20, 2016), https://time.com/4608555/hillary-clinton-popular-vote-final/.
[3] Julia Boccagno, Which Candidates Did the Seven “Faithless” Electors Support?, CBS News (Dec. 21, 2016), https://www.cbsnews.com/news/which-candidates-did-the-seven-faithless-electors-support-election-2016/.
[4] Id.
[5] Faithless Elector State Laws, FairVote, https://www.fairvote.org/faithless_elector_state_laws (noting that 32 states have elector pledge laws, yet only 17 of those states have an enforcement mechanism).
[6] Id.
[7] Matter of Guerra, 441 P.3d 807 (Wash. 2019), cert. granted sub nom. Chiafalo v. Washington, 140 S. Ct. 918 (2020).
[8] Baca v. Colorado Dep’t of State, 935 F.3d 887 (10th Cir. 2019), cert. granted, 140 S. Ct. 918 (2020).
[9] Colorado Dep’t of State v. Baca, 140 S. Ct. 918 (2020).
[10] Matter of Guerra, 441 P.3d 807, 809 (Wash. 2019).
[11] Id.
[12] U. S. Const. amend. XII.
[13] U. S. Const. amend. XXIII.
[14] U.S. Const. art. II, §1, cl. 2 (“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”).
[15] About the Electors, National Archives (Dec. 23, 2019), https://www.archives.gov/electoral-college/electors (“When you vote for a Presidential candidate, you aren’t actually voting for President.”).
[16] Baca v. Colorado Dep’t of State, 935 F.3d 887, 948 (10th Cir. 2019) (noting that a Pennsylvania elector had defied voters’ expectations by casting his ballot in the 1796 election for John Adams rather than Thomas Jefferson).
[17] Matter of Guerra, 441 P.3d 807, 810 (Wash. 2019) (citing Jerry H. Goldfeder, Election Law and the Presidency: An Introduction and Overview, 85 Fordham L. Rev. 965, 968 (2016)).
[18] Bush v. Gore, 121 S. Ct. 525, 529 (2000) (“The individual citizen has no federal constitutional right to vote for electors for the President of the United States”).
[19] Ray v. Blair, 72 S. Ct. 654, 658 (1952).
[20] Id. at 661.
[21] Id. at 662.
[22] Matter of Guerra, 441 P.3d 807, 808 (Wash. 2019).
[23] Id.
[24] Id.
[25] Id.
[26] Id. at 810.
[27] Id. at 813.
[28] Id. at 815-16.
[29] Id. at 814.
[30] Id. at 818 (Gonzales, J., dissenting).
[31] Id. at 818 (Gonzales, J., dissenting).
[32] Baca v. Colorado Dep’t of State, 935 F.3d 887, 901 (10th Cir. 2019).
[33] Id.
[34] Id. at 956 (Briscoe, J., dissenting).
[35] Id. at 936.
[36] Id. at 938 (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 802, 115 S.Ct. 1842 (1995)).
[37] Myers v. United States, 47 S. Ct. 21, 31 (1926).
[38] Baca, 935 F.3d 942.
[39] Id.
[40] Id. at 943.
[41] Id. at 945.
[42] Id. at 949 (“we are aware of no instance in which Congress has failed to count an anomalous vote, or in which a state—before Colorado—has attempted to remove an elector in the process of voting, or to nullify a faithless vote.”).
[43] Id. at 952.
[44] Id. at 951 (quoting McPherson v. Blacker, 13 S.Ct. 3, 11 (1892)).
[45] Myers v. United States, 47 S. Ct. 21, 31 (1926).
[46] Matter of Guerra, 441 P.3d at 816.
[47] McPherson v. Blacker, 13 S.Ct. 3, 11 (1892).
[48] Baca, 935 F.3d at 949.
