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Expert Brief

Can the Members of the Electoral College Choose Who They Vote For?

A pair of cases could set the stage for the first major Supreme Court decision on presidential elections in nearly two decades.

Last Updated: July 6, 2020
Published: January 8, 2020

UPDATE: On July 6, the Supreme Court unan­im­ously ruled, “A State may enforce an elect­or’s pledge to support his party’s nomin­ee—and the state voters’ choice—­for Pres­id­ent. … Elect­ors are not free agents; they are to vote for the candid­ate whom the State’s voters have chosen.”

Every pres­id­en­tial elec­tion brings renewed debate about the Elect­oral College. The discus­sion reson­ates even more this year, since Donald Trump won the pres­id­ency in 2016 despite losing the popu­lar vote by nearly 3 million.

Most of the Demo­cratic pres­id­en­tial candid­ates want to abol­ish the Elect­oral College to ensure the person with the most votes always wins. Chan­ging to direct elec­tion of the pres­id­ent could be accom­plished through a consti­tu­tional amend­ment or, less perman­ently, a method such as the National Popu­lar Vote Compact, an agree­ment among states to award their elect­oral votes to the candid­ate who wins the national popu­lar vote. Before his elec­tion, Trump called the current system a “disaster,” but after­wards, he said that “the Elect­oral College is far better for the U.S.A.”                                                                          

The Supreme Court may soon weigh in on a key aspect of how the system works. In a pair of court rulings that have been appealed to the high court, the justices are being asked to decide whether states can require pres­id­en­tial elect­ors to vote for that state’s popu­lar-vote winner.

The Elect­oral College cases

In Wash­ing­ton State in 2016, three so-called “faith­less” elect­ors voted for Colin Powell instead of Hillary Clin­ton, viol­at­ing a pledge under state law to vote for the candid­ate who won the most votes in their state. The state fined them for their defi­ance, and in May 2019, the Wash­ing­ton Supreme Court upheld the fines, ruling that the Consti­tu­tion gives the state power to impose a finan­cial penalty on elect­ors who viol­ate their pledge.

In Color­ado, a Demo­cratic elector also viol­ated his pledge to vote for Clin­ton, the candid­ate chosen by the voters in that state. Color­ado’s secret­ary of state removed the elector from his post and replaced him with someone who proceeded to vote for Clin­ton. In this case, the U.S. Court of Appeals for the Tenth Circuit ruled against the state, hold­ing that it lacked consti­tu­tional author­ity to remove and replace faith­less elect­ors.

The losing sides in both lawsuits have peti­tioned the Supreme Court to take their case, poten­tially setting the stage for the first major decision on the way we choose the pres­id­ent since Bush v. Gore, which halted the Flor­ida recount in 2000 and delivered the White House to George W. Bush.

Choos­ing elect­ors in theory and prac­tice

The Consti­tu­tion never specific­ally mentions the Elect­oral College. It is, in fact, a collo­quial term for the process by which the pres­id­ent and vice pres­id­ent are chosen. The consti­tu­tional rules that govern their selec­tion are found in Article II and the Twelfth and Twenty-Third Amend­ments.

Under Article II, each state is afforded a number of elect­ors equal to the size of its congres­sional deleg­a­tion, that is, the number of repres­ent­at­ives plus its two senat­ors. (The Twenty-Third Amend­ment added three elect­ors from the District of Columbia.) The Twelfth Amend­ment, which was rati­fied in 1804, outlines the proced­ures for the elect­oral system we still use today. The elect­ors meet in their home states to cast votes on separ­ate ballots for the pres­id­ent and vice pres­id­ent. They then deliver their votes to Congress to be coun­ted in what has become a mostly cere­mo­nial proceed­ing. Import­antly for the purposes of these recent cases, states can appoint their elect­ors “in such manner as the Legis­lature thereof may direct.”

While the Consti­tu­tion is clear that states have discre­tion on how they choose their elect­ors, it leaves open whether they may instruct the elect­ors how to vote and, if so, whether they may enforce those instruc­tions. As it was origin­ally conceived, the Elect­oral College was supposed to consist of a fleet­ing body of men (they were only men at the time) “most likely to possess the inform­a­tion and discern­ment requis­ite” to select the pres­id­ent. They were to exer­cise sober delib­er­a­tion and be afforded some meas­ure of inde­pend­ence in their task. 

But two things separ­ated the theory from the prac­tice. One was the rise of the party system. When partis­ans chose elect­ors, it became clear that those elect­ors would forgo their discre­tion and vote for their party’s candid­ate. The other was the change in how elect­ors were selec­ted. Early on, elect­ors were chosen in a vari­ety of meth­ods: some were elec­ted by district and some were appoin­ted by their state legis­latures. However, by the middle of the nine­teenth century, as many states loosened their suffrage require­ments, most enacted laws giving the voters the power to choose their states’ elect­ors through popu­lar elec­tion. For the most part, elect­ors have loyally voted for their party’s nominee, defect­ing only rarely.

In 1952, the Supreme Court ruled that state parties can require elect­ors to pledge to vote for their parties’ nominee before they are certi­fied as elect­ors. The dispute arose out of the “Dixiec­rat Revolt” that led to Strom Thur­mond’s 1948 pres­id­en­tial bid under the States’ Rights Party, which siphoned 39 elect­oral votes from Pres­id­ent Harry S. Truman, the party’s nominee.

Justice Robert Jack­son, in a blis­ter­ing dissent, wrote:

“The demise of the whole elect­oral system would not impress me as a disaster. At its best, it is a mysti­fy­ing and distort­ing factor in pres­id­en­tial elec­tions which may resolve a popu­lar defeat into an elect­oral victory. At its worst, it is open to local corrup­tion and manip­u­la­tion, once so flag­rant as to threaten the stabil­ity of the coun­try. To abol­ish it and substi­tute direct elec­tion of the Pres­id­ent, so that every vote, wherever cast, would have equal weight in calcu­lat­ing the result, would seem to me a gain for simpli­city and integ­rity of our govern­mental processes.”

Notably, the Court did not address whether the required pledges were legally enforce­able, which brings us to today.

So who are these elect­ors now?

In the Wash­ing­ton case, In re Guerra, the state’s supreme court ruled that the elect­ors’ pledges to vote for the candid­ate of their party were enforce­able. However, the federal appeals court in Denver ruled that they are not, reject­ing the “argu­ment that the power to appoint elect­ors neces­sar­ily includes the power to remove them and to cancel an already-cast vote.” That court noted that the Consti­tu­tion was silent on the ques­tion and inter­preted that silence to mean that states lack the power to remove elect­ors.

So, who are these elect­ors?

In general, they are, as Jack­son called them, “party lack­eys.” In most states, they are selec­ted at polit­ical conven­tions by the state party commit­tee or by members of party lead­er­ship. They are chosen over a wide timespan, from early in the pres­id­en­tial elec­tion year to just weeks before the contest, though most are selec­ted during the summer. And while their names may or may not appear on the ballot, they are the people you vote for when you cast your vote for pres­id­ent. 

Elect­ors vote as expec­ted about 99 percent of the time. Over the last century, just 19 elect­ors bucked the system to vote their conscience. Remark­ably, 10 did so (or attemp­ted to do so) in 2016. Faith­less elect­ors have never changed the outcome of an elec­tion, though in 1836, they threw the vice-pres­id­en­tial elec­tion of Richard John­son to a contin­gent elec­tion in the Senate after Virgini­a’s elect­ors refused to vote for him due to his rela­tion­ship with Julia Chinn, an enslaved person. (Under the Consti­tu­tion, if a vice-pres­id­en­tial candid­ate does not receive a major­ity in the Elect­oral College, then the Senate decides the winner.) 

While party loyalty largely explains the low rate of defec­tion, state legis­la­tion provides addi­tional incent­ive for elect­ors to vote for their party’s nominee. 

Thirty-two states and the District of Columbia have laws that “bind” elect­ors to vote accord­ing to their pledge. Nine­teen of those states and the District of Columbia have no legal consequences for elect­ors who defy the will of the voters. In 11 states, a non-compli­ant vote is nulli­fied, the office is presumed vacant, and a new elector is chosen. (Color­ado is not among this group but inter­preted its law in this way.) And in four others, includ­ing two that also replace faith­less elect­ors, viol­at­ing the pledge is punish­able by prosec­u­tion or a fine. 

But before 2016, no elector had ever been subjec­ted to a penalty or replace­ment. 

The cracks in the elect­oral college

Now, the Wash­ing­ton elect­ors and the Color­ado secret­ary of state have asked the U.S. Supreme Court to hear their cases. If the justices deny the requests outright, the Tenth Circuit Court of Appeals decision would remain in effect, inval­id­at­ing the full spec­trum of elector laws in Color­ado and five other states. (While the ruling in Wash­ing­ton would also stand, recent changes in the state’s law would limit its imme­di­ate prac­tical impact.) 

If the Supreme Court takes the cases, three options stand out: the justices can rule that states have the power to sanc­tion and remove faith­less elect­ors to enforce the will of the voters; they can rule that states have the power to sanc­tion but not to remove them; or they can rule that states have neither power, free­ing elect­ors to exer­cise discre­tion.

The faith­less elector cases have exposed more cracks in the anachron­istic Elect­oral College system. The justices can deny the exist­ence of cracks, allow them to expand and become faults, or try to “patch” them yet again. Whatever the outcome, the cases provide yet one more reason why the coun­try should adopt a fairer system that counts every person’s vote equally.