DENVER–The U.S Supreme Court on Monday ruled that states can bind their state presidential electors to vote for the state popular vote winner.
Ruling in Chiafalo et al v. Washington the Court said, “A state may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President.”
The plaintiffs, three electors from Washington state who had pledged to support the 2016 Democratic nominee, Hillary Clinton, decided to vote for Colin Powell instead, hoping electors in other states would follow their lead and vote against their state’s popular vote to deny Donald Trump the presidency.
In Colorado, three electors, Polly Baca, Robert Nemanich and Micheal Baca, challenged Colorado’s statute that orders electors to vote for the presidential and vice-presidential candidates who win the popular vote.
A flurry of lawsuits followed, with the issue ending up before the Supreme Court May 13.
Justice Elena Kagan delivered the unanimous opinion, writing that the instructions in Article II, Section 1 and the 12th Amendment of the U.S. Constitution “took no position on how independent from—or how faithful to—party and popular preferences the electors’ votes should be.”
The Constitution says, “Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors…”
The plaintiffs argued that the Constitution only authorizes the states to appoint electors using whatever method of doing so the legislature may choose, but that this grant of authority did not extend to directing how an elector is required to vote.
They based this argument on the writings of the Founders, relying on historical documents including the Federalist No. 68, written by Alexander Hamilton and the contemporary writings of John Jay, among others.
But Justice Kagan rejected this original intent argument, saying, “[E]ven assuming other Framers shared that outlook, it would not be enough. Whether by choice or accident, the Framers did not reduce their thoughts about electors’ discretion to the printed page.”
In ruling that states can enforce pledges, the Court said, “It 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.”
But to get there the Court said that voting and freedom of choice in deciding who to vote for are not necessarily connected.
“Suppose a person always votes in the way his spouse, or pastor, or union tells him to,” wrote Kagan. “We might question his judgment, but we would have no problem saying that he ‘votes’ or fills in a ‘ballot.’ In those cases, the choice is in someone else’s hands, but the words still apply because they can signify a mechanical act.”
Dismissing the element of freedom of choice as an essential component of voting Kagan says, “For that matter, some elections give the voter no real choice because there is only one name on a ballot (consider an old Soviet election, or even a down- ballot race in this country). Yet if the person in the voting booth goes through the motions, we consider him to have voted.”
In his dissent, joined by Justice Neil Gorsuch, Justice Clarence Thomas comes to the same conclusion regarding the state’s power to compel an elector to vote in a particular way, but for an entirely different reason.
Justice Thomas objected to the Court creating an interpretation of the word “manner” in this case that is different from that used in Article 1, Section 4, pertaining to the election of Senators and Representatives.
Thomas says that in another case, U.S. Term Limits v. Thornton, the Court concluded that the term “manner,” as it pertains to congressional elections, includes only “a grant of authority to issue procedural regulations,” not “the broad power to set qualifications,” thereby preventing states from imposing term limits on members of Congress.
He goes on to say, “Yet, today, the Court appears to take the exact opposite view. The Court interprets the term “Manner” in Article II, §1, to include the power to impose conditions or qualifications on the appointment of electors.”
“The Court’s entire analysis is premised on States’ purported Article II ‘power to appoint an elector’ and ‘to condition his appointment,’” writes Thomas. “The Court does not, and cannot, claim that the text of Article II provides States power over anything other than the appointment of electors.”
Thomas says that the 10th Amendment is adequate to the task of resolving this question. It says, “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 says, “In short, the Constitution does not speak to States’ power to require Presidential electors to vote for the candidates chosen by the people… Rather than contort the language of both Article II and the state statute, I would acknowledge that the Constitution simply says nothing about the States’ power in this regard.”