by Julie Pelegrin
The U.S. Supreme Court recently held in Chiafalo v. Washington that not only can a state require a presidential elector to vote for the candidate nominated by the elector’s political party, the state can also punish an elector who fails to do so—a so-called “faithless elector.” The case was based on the removal of faithless electors in both Washington State and Colorado. The Washington Supreme Court looked to the legal precedent interpreting the U.S. Constitution and upheld the constitutionality of punishing faithless electors. The Tenth Circuit Court of Appeals, in Baca v. Colo. Dept. of State, looked more to the plain language of the U.S. Constitution and how it had historically been applied and found that removing a faithless elector was unconstitutional.
The U.S. Supreme Court resolved the issue by taking the same approach as the Tenth Circuit—looking to the plain language and the historical application—but coming to the opposite conclusion. Looking at the same language and interpreting many of the same facts, the Supreme Court reversed the Tenth Circuit with an 8-0 decision (Justice Sotomayor recused herself). A brief comparison of the two opinions illustrates how easy it is for lawyers to reach opposite conclusions.
First, a primer on how we really elect presidents and vice presidents. Article II, section 1(2) of the U.S. Constitution directs each state to appoint, “in such manner as the legislature thereof may direct,” electors to elect the president and vice president. These electors make up the Electoral College. In Colorado, when we vote for candidates for president and vice president, we are actually voting for a slate of electors nominated by the candidates’ political parties. In every state except Maine and Nebraska, the winner of the statewide popular vote receives all of the state’s electoral votes. For example, if the Democratic Party’s candidates win the popular vote in a state, then the Democratic Party’s electors will participate in the Electoral College for that state.
The Twelfth Amendment to the U.S. Constitution specifies the process the electors must follow in electing the president and vice president. Each elector casts a vote for president and a vote for vice president. The Electoral College votes from each state are tallied, and the candidates for president and vice president who receive the most votes win, so long as they receive a majority of all the votes cast by the Electoral College. If no presidential or vice presidential candidate receives a majority, the House of Representatives chooses the president from among the top three vote getters, and the Senate chooses the vice president from among the top two vote getters.
Colorado is one of 32 states that, by statute, require electors to vote for their respective parties’ presidential and vice presidential candidates. After the 2016 election, however, some of the Democratic Party electors decided to vote for someone other than Hillary Clinton, hoping to entice some of the Republican Party electors to vote for someone other than Donald Trump and ensure that no one received a majority of the Electoral College votes. If they had been successful, the House of Representatives would have chosen the president. Obviously, this strategy didn’t work. Instead, in Colorado, when an elector—Mr. Baca—voted for John Kasich instead of Clinton, the Secretary of State replaced him. And in Washington State, three faithless electors who voted for Colin Powell instead of Clinton were removed and fined $1,000.
In both states, statutes authorized removal of the electors. In Washington, the three electors sued in state court, claiming the statutes were unconstitutional and their removal violated their federal constitutional rights as electors. The Washington Supreme Court held that the Washington statute was constitutional and nothing prevented the state from requiring electors to vote for their party’s candidate and punishing them when they failed to do so. The Washington electors appealed to the U.S. Supreme Court.
In Colorado, Mr. Baca filed a civil action in federal court, claiming that the Secretary of State violated his constitutional rights by removing him. The Tenth Circuit agreed with Mr. Baca, holding that, even if the state could require electors to vote for their party’s nominee, it could not enforce the requirement by removing a faithless elector and nullifying the elector’s vote. The Secretary of State appealed to the U.S. Supreme Court, which agreed to hear both cases to resolve the disagreement.
Both the Supreme Court and the Tenth Circuit recognized that states may require presidential electors to support the presidential and vice presidential nominees of their parties. The issue was, whether a state could enforce that requirement. Both courts also agreed that the U.S. Constitution is silent on whether a state may remove a faithless elector. But that’s pretty much where the agreement ended.
The Tenth Circuit found there is no implied power for a state to remove an elector because the elector isn’t fulfilling a state duty; the elector is fulfilling a federal duty. But the Supreme Court looked at the state’s unfettered power to appoint electors, which includes the power to impose conditions on the appointment—like who the elector has to vote for. The Supreme Court concluded that removing an elector who fails to meet those conditions is just a natural extension of the power to impose the condition itself.
The Tenth Circuit looked to the “plain language” of Art. II, Section 1(2) and the Twelfth Amendment. Using contemporaneous definitions, it determined that the terms “elector,” “vote,” and “ballot” clearly imply that electors are to have discretion and exercise individual choices in voting for candidates.
The Supreme Court, however, noted that the “plain language” doesn’t specify that electors must make their own choice when voting, like some state constitutions did when the constitution was written. The federal constitution could have said that, but it didn’t. The Court also noted that the terms “elector,” “vote,” and “ballot” don’t have to connote independence. Electors had been pledging to vote their parties’ tickets for years before the Twelfth Amendment was written, and those votes were counted even though they were not the result of an independent choice.
Finally, the Tenth Circuit looked at history and original intent. Citing the Federalist Papers and former Supreme Court Justice Joseph Story’s commentary on the constitution, it found that the authors of the constitution intended electors to exercise their independent judgment; Justice Story had complained that electors had been pledging their votes for years, which was never the authors’ intent. The Tenth Circuit also found 165 instances of faithless electors, and all of those votes were counted even though the electors broke their pledges.
The Supreme Court countered all of these findings. The Court refused to allow the Federalist Papers to override or add to the actual language in the constitution. The Court noted that as early as 1796, voters expected electors to vote the party ticket and, citing Justice Story and others, recognized that electors did just what they were told to do. And finally, the Court identified 180 instances of faithless electors—out of 23,000. As such, those instances were mere anomalies, only one of which was even contested. That elector’s faithless vote was challenged and was upheld, but the elector came from a state that did not have a pledge statute. The Court observed that one instance in 200 years “hardly constitutes an historical tradition.”
Based on its reading of history and the law, the Supreme Court found that states, for much of the last 220 years or so, have been requiring presidential electors to keep faith with their parties and the voters, and there’s no constitutional requirement to change that now.
 In these states, the candidate who wins the popular vote in each congressional district gets the electoral vote for that district and the two remaining electoral votes go to the candidate who wins the statewide popular vote. So both Republican and Democratic Party electors may participate in the Electoral College for these states.