ICYMI - Supreme Court Heard Faithless Electors Cases - Part I (Amici Arguments)

Last week, the Supreme Court heard oral argument (virtually) in two "faithless electors" cases, Chiafalo v. Washington and  Colorado Department of State v. Baca.  Presidential electors who wished to vote in 2016 for persons other than Hillary Clinton, who won the popular vote in both states, were sanctioned by the states, with a $1,000 fine for the Washington electors and removal for the Colorado electors.  These cases present interesting constitutional, jurisdictional, and legal policy questions, and the justices seemed to consider them close cases during oral argument.  Here are some highlights from arguments presented to the Court by amici, and part II will focus on oral argument and analysis of the case.

In its amicus brief, authored by RNLA Board of Governors members Michael Toner and Lee Goodman, the RNC argued federalism and historical practice grounds for allowing states to bind their electors:

Washington and Colorado argue that the Constitution affirmatively grants them authority to require the electors they appoint to follow the popular will of their citizens in presidential elections, and that there is no constitutional provision that prohibits them from doing so. Indeed, it is exactly because there is no prohibition that the States need not point to any affirmative grant of authority. The implicit ordering of relationships within the federal system, incorporated into the Constitution, establishes a default rule that the States may act unless the Constitution affirmatively limits their power.

The default rule should control these cases. This Court has long confirmed that the presumption of state authority applies to the regulation of presidential electors because, as the States establish, there is nothing in the Constitution that removes that inherent authority. Thus, whether or not the power to bind electors is affirmatively granted by Article II, Washington and Colorado were entitled to enforce their electors’ pledges. . . .

Any doubt about the correct application of the fundamental structural principles underlying our Constitution is resolved by two-hundred years of unbroken constitutional practice. In the earliest presidential elections, the States experimented with different methods for appointing electors. By the early nineteenth century, however, every State was appointing its electors from competing political party slates selected based on the results of that State’s popular vote—a practice continued through today. Moreover, contrary to the Electors’ view of themselves as an unaccountable super-elite with unfettered discretion to pick the President and Vice President, the historical record shows that, in fact, the electors have always been obligated to register the political will of those that appointed them. This result maintains the integrity of the Electoral College, thus reinforcing the liberty enhancing values of federalism and the separation of powers.

Florida State Law Professor Michael Morley filed an amicus brief arguing that the cases present non-justiciable political questions and that a ruling for the faithless electors would disenfranchise voters in the states of faithless electors, thereby violating the constitutional right to vote (internal citation omitted):

Faithless elector laws are a valid implication of this Court’s holding that a state legislature’s decision to appoint presidential electors based on the outcome of a statewide popular vote triggers voters’ fundamental constitutional right to vote.  Recognizing a “fundamental” constitutional right to vote for President would be a hollow formality if a state’s electors could assert a constitutional prerogative to cast their electoral votes for a candidate who had lost the popular vote within that state—or potentially did not even participate in that state’s presidential election at all.

Iowa Law Professor Derek Muller also argued that the political question doctrine makes these cases non-justiciable in his amicus brief, on the grounds that Congress is the sole constitutional judge of the validity of Electoral College votes, and historical practices since the Founding has allowed states to control the actions of electors: 

First, this Court should not issue a decision because Congress holds the exclusive power to count, scrutinize, and even reject electoral votes. In 2017, Congress counted Colorado’s and Washington’s electoral votes, and this Court has been asked to revisit a decision reserved to the judgment of Congress. . . .

Third, states may empower electors to ascertain vacancies in the meeting of electors, and states may levy fines on presidential electors, even after those electors have been selected. In the event this Court reaches the merits of this case, it should identify permissible practices of states in identifying vacancies and fining electors, and existing state statutes might be construed narrowly to avoid addressing constitutional questions.

The Colorado Republican Committee, in a brief co-authored by RNLA Colorado Chapter Chair Chris Murray, argued both in support of states' power over the appointment of electors and political parties' associational right to choose their electors where the states have delegated that right (internal citation and outline headings omitted):

It is beyond dispute that states have plenary power in the “appointment” of presidential electors. Since the first presidential election, states have exercised that power to fashion different modes by which to select presidential electors, from appointment by state legislatures, to popular vote by the state or districts, to forms of elector-specific committees. Today, however, all presidential electors are elected by popular vote in the states. Although the mode of selection has changed throughout history, the involvement of political parties has remained constant. Many states, like Colorado, delegate to state political parties the authority to nominate and fill slates of presidential electors. Indeed, each presidential election year, the Committee’s chairman selects and nominates the Republican slate of presidential electors for the Colorado Republican Party. In exercising its associational legitimacy to select nominees, the Committee necessarily invokes its right to exclude unfit candidates—a right the Court has said is most sacred to political associations.

It is for this reason the Court in Ray v. Blair, blessed the Alabama Democratic Party’s exclusion of a candidate for presidential elector when he refused to pledge aid and support to the nominees of the national Democratic Party. Like Colorado, Alabama had delegated the task of nominating presidential electors to state political parties. The Court found no federal constitutional objection when a party chooses to fix the qualifications for elector candidates to guard against intrusion by those with adverse political principles. And, the Court stressed it is the party’s affirmative constitutional right to do so as a voluntary association. Thus, the Court rejected the idea that Article II, section 1 and the Twelfth Amendment demand absolute freedom for the elector to vote his or her own choice.

Accordingly, based on Ray, there is no legal objection to the Committee requiring a pledge by candidates for presidential elector prior to nomination. Even more, the Committee must be allowed to enforce such a pledge against a faithless elector if states may not bind electors to the statewide popular vote. First, a conclusion barring states from imposing an obligation on presidential electors does not answer whether an elector may voluntarily exercise his or her will and agree to be legally bound by a pledge to qualify as a party’s nominee for elector. Second, failure to recognize state political parties’ right to enforce candidate-pledges would violate the parties’ associational rights. Because Colorado has decided to use the state political party platform to select nominees for presidential elector, the exercise of a party’s associational legitimacy to nominate a slate of electors for the general election is protected expression, which necessarily includes enforcing pledges and excluding electors with adverse political principles. 

In the second post on this case, we will highlight some of the moments from oral argument and some of the analysis of this case.  This is an important decision that will have an impact not only on the 2020 presidential election but also potentially on other areas of election and constitutional law.