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Prosecuting or Removing ‘Faithless’ Presidential Electors is Unconstitutional

October 3, 2017

A 2016 Colorado Democratic presidential elector who pledged to vote for Hillary Clinton is suing because the state removed him from his position after he voted for Ohio Gov. John Kasich instead. He joins two other electors with somewhat similar claims.

A 2016 Colorado Democratic presidential elector who pledged to vote for Hillary Clinton is suing because the state removed him from his position after he voted for Ohio Gov. John Kasich instead. He joins two other electors with somewhat similar claims.

The three electors argue the Constitution bans states from dictating how they vote. They are represented by Lawrence Lessig, a Harvard law professor of wide interests and abilities.

According to the original meaning of the Constitution, Lessig and his three clients are correct. Article II, Section 1, Clause 2 and the 12th Amendment—which together govern presidential elections—grant electors, not the states, authority to vote for president and vice president. Colorado’s effort to punish them for voting “wrong” is unconstitutional.

Article II, Section 1, Clause 2 provides, “Each state shall appoint [Electors], in such Manner as the Legislature thereof may direct …” Note that the appointment is by the state itself rather than by any branch of the state.

How the appointment is carried out (“in such Manner”) is determined by the state legislature. The record from the Founding era tells us that in this instance, “legislature” means the state’s general lawmaking apparatus, including the governor’s bill-signing function. The Constitution assigns some responsibilities to state legislatures acting alone, but fixing the manner of appointing presidential electors is not among them.

In other words, aside from the Constitution’s grant to Congress of power to fix a uniform presidential election day, the “Manner” by which a state appoints presidential electors is prescribed by state election laws. All states have passed laws authorizing the people of the state to vote for electors directly. (It’s worth mentioning that, for reasons too complicated to discuss here, a 1934 Supreme Court decision holding that Congress also has broad power over presidential elections was erroneous.)

What does this “manner of appointment” include? May a state impose pledges on candidates for elector? May a state punish those who break their pledges? May it remove an elector who votes the “wrong” way and substitute another who votes “right?”

Although the Supreme Court has upheld pledges, I doubt whether the Constitution authorizes states to do any of these things. A great deal of Founding-era evidence tells us that in this context “Manner” includes only the basic mechanics of selection: registration lists, voting districts, necessary margin of victory, and the like. The evidence does not suggest that “Manner” of selection encompasses how a successful candidate acts after selection.

Several facts reinforce this conclusion. First, the 12th Amendment provides, “The Electors shall … vote by ballot for President and Vice-President …” Electors vote—not a state puppet master. As the Supreme Court has recognized in cases involving constitutional amendments, when the Constitution grants a function to a convention or legislature, it means the convention or legislature, not some outside coercing agency.

If the Constitution allowed state authorities to dictate their state’s presidential votes, then why did it require the states to appoint flesh-and-blood electors?

Electors are to vote “by ballot.” In Founding-era language, that means secret ballot. But a state’s preferences generally will be public information. If the electors have nothing to decide, then why did the Constitution require a secret ballot?

As if all this were not enough, the Founders were explicit: Once chosen, presidential electors make their own decisions. In Federalist No. 67, for example, Alexander Hamilton wrote of the Electoral College:

[T]he immediate election should be made by men most capable of analyzing the qualities adapted to the [president’s] station, and acting under circumstances favourable to deliberation, and to a judicious combination of all the reasons and inducements that were proper to govern their choice. A small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.

Of course, a candidate running for presidential elector has every right to tell the voters how he or she expects to cast his or her ballot. But for better or worse the Constitution does not authorize the state to punish an elector if, in the exercise of discretion, he decides to change his mind.

 

Rob Natelson (think@heartland.org), a former constitutional law professor, serves as a senior fellow in constitutional jurisprudence at The Heartland Institute. He is the author of The Original Constitution: What It Actually Said and Meant.
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Constitutional Reform
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Robert G. “Rob” Natelson is widely acknowledged to be the country’s leading scholar on the Constitution's amendment procedure, and among the leaders on several other topics.
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