PETER
B. CHIAFALO,
LEVI JENNET GUERRA, and ESTHER VIRGINIA JOHN,
PETITIONERS v. WASHINGTON [July 6, 2020] Justice Kagan
delivered the opinion of the Court. Every four years, millions of
Americans cast a ballot for a
presidential candidate. Their votes, though, actually go
toward selecting
members of the Electoral College, whom each State
appoints based on the popular
returns. Those few “electors” then choose the President. The States have devised mechanisms to
ensure that the
electors they appoint vote for the presidential
candidate their citizens have
preferred. With two partial exceptions, every State
appoints a slate of
electors selected by the political party whose candidate
has won the State’s
popular vote. Most States also compel electors to pledge
in advance to support
the nominee of that party. This Court upheld such a
pledge requirement decades
ago, rejecting the argument that the Constitution
“demands absolute freedom for
the elector to vote his own choice.” Ray v. Blair, 343
U.S. 214, 228 (1952). Today, we consider whether a State
may also penalize an
elector for breaking his pledge and voting for someone
other than the
presidential candidate who won his State’s popular vote.
We hold that a State
may do so. I Our Constitution’s method of picking
Presidents emerged from
an eleventh-hour compromise. The issue, one delegate to
the Convention
remarked, was “the most difficult of all [that] we have
had to decide.” In the
dying days of summer, they referred the matter to the
so-called Committee of
Eleven to devise a solution. The Committee returned with
a proposal for the
Electoral College. Just two days later, the delegates
accepted the
recommendation with but a few tweaks. James Madison
later wrote to a friend
that the “difficulty of finding an unexceptionable
[selection] process” was
“deeply felt by the Convention.” Because “the final
arrangement of it took
place in the latter stage of the Session,” Madison
continued, “it was not
exempt from a degree of the hurrying influence produced
by fatigue and
impatience in all such Bodies: tho’ the degree was much
less than usually
prevails in them.” Whether less or not, the delegates
soon finished their work
and departed for home. The provision they approved about
presidential electors is
fairly slim. Article II, §1, cl. 2 says: “Each State shall appoint, in such
Manner as the Legislature
thereof may direct, a Number of Electors, equal to the
whole Number of Senators
and Representatives to which the State may be entitled
in the Congress: but no
Senator or Representative, or Person holding an Office
of Trust or Profit under
the United States, shall be appointed an Elector.” The next clause (but don’t get
attached: it will soon be
superseded) set out the procedures the electors were to
follow in casting their
votes. In brief, each member of the College would cast
votes for two candidates
in the presidential field. The candidate with the
greatest number of votes,
assuming he had a majority, would become President. The
runner-up would become
Vice President. If no one had a majority, the House of
Representatives would
take over and decide the winner. That plan failed to anticipate the
rise of political
parties, and soon proved unworkable. The Nation’s first
contested presidential
election occurred in 1796, after George Washington’s
retirement. John Adams
came in first among the candidates, and Thomas Jefferson
second. That meant the
leaders of the era’s two warring political parties—the
Federalists and the
Republicans—became President and Vice President
respectively. (One might think
of this as fodder for a new season of Veep.) Four years
later, a different
problem arose. Jefferson and Aaron Burr ran that year as
a Republican Party
ticket, with the former meant to be President and the
latter meant to be Vice.
For that plan to succeed, Jefferson had to come in first
and Burr just behind
him. Instead, Jefferson came in first and Burr . . . did
too. Every elector who
voted for Jefferson also voted for Burr, producing a
tie. That threw the
election into the House of Representatives, which took
no fewer than 36 ballots
to elect Jefferson. (Alexander Hamilton secured his
place on the Broadway
stage—but possibly in the cemetery too—by lobbying
Federalists in the House to
tip the election to Jefferson, whom he loathed but
viewed as less of an existential
threat to the Republic.) By then, everyone had had
enough of the Electoral
College’s original voting rules. The result was the Twelfth Amendment,
whose main part
provided that electors would vote separately for
President and Vice President.
The Amendment, ratified in 1804, says: “The Electors shall meet in their
respective states and vote
by ballot for President and Vice-President . . .; they
shall name in their
ballots the person voted for as President, and in
distinct ballots the person
voted for as Vice-President, and they shall make
distinct lists of all persons
voted for as President, and of all persons voted for as
Vice-President, and of
the number of votes for each, which lists they shall
sign and certify, and
transmit sealed to [Congress, where] the votes shall
then be counted.” The Amendment thus brought the
Electoral College’s voting
procedures into line with the Nation’s new party system. Within a few decades, the party
system also became the means
of translating popular preferences within each State
into Electoral College
ballots. In the Nation’s earliest elections, state
legislatures mostly picked
the electors, with the majority party sending a
delegation of its choice to the
Electoral College. By 1832, though, all States but one
had introduced popular
presidential elections. At first, citizens voted for a
slate of electors put
forward by a political party, expecting that the winning
slate would vote for
its party’s presidential (and vice presidential) nominee
in the Electoral
College. By the early 20th century, citizens in most
States voted for the
presidential candidate himself; ballots increasingly did
not even list the
electors. After the popular vote was counted, States
appointed the electors
chosen by the party whose presidential nominee had won
statewide, again
expecting that they would vote for that candidate in the
Electoral College. In the 20th century, many States
enacted statutes meant to
guarantee that outcome—that is, to prohibit so-called
faithless voting. Rather
than just assume that party-picked electors would vote
for their party’s
winning nominee, those States insist that they do so. As
of now, 32 States and
the District of Columbia have such statutes on their
books. They are typically
called pledge laws because most demand that electors
take a formal oath or
pledge to cast their ballot for their party’s
presidential (and vice
presidential) candidate. Others merely impose that duty
by law. Either way, the
statutes work to ensure that the electors vote for the
candidate who got the
most statewide votes in the presidential election. Most relevant here, States began
about 60 years ago to back
up their pledge laws with some kind of sanction. By now,
15 States have such a
system. Almost all of them immediately remove a
faithless elector from his
position, substituting an alternate whose vote the State
reports instead. A few
States impose a monetary fine on any elector who flouts
his pledge. Washington is one of the 15 States
with a sanctions-backed
pledge law designed to keep the State’s electors in line
with its voting
citizens. As all States now do, Washington requires
political parties fielding
presidential candidates to nominate a slate of electors.
On Election Day, the
State gives voters a ballot listing only the candidates
themselves. When the
vote comes in, Washington moves toward appointing the
electors chosen by the
party whose candidate won the statewide count. But
before the appointment can
go into effect, each elector must “execute [a] pledge”
agreeing to “mark [her] ballots”
for the presidential (and vice presidential) candidate
of the party nominating
her. And the elector must comply with that pledge, or
else face a sanction. At
the time relevant here, the punishment was a civil fine
of up to $1,000. This case involves three Washington
electors who violated
their pledges in the 2016 presidential election. That
year, Washington’s voters
chose Hillary Clinton over Donald Trump for President.
The State thus appointed
as its electors the nominees of the Washington State
Democratic Party. Among
those Democratic electors were petitioners Peter
Chiafalo, Levi Guerra, and
Esther John (the Electors). All three pledged to support
Hillary Clinton in the
Electoral College. But as that vote approached, they
decided to cast their ballots
for someone else. The three hoped they could encourage
other
electors—particularly those from States Donald Trump had
carried—to follow
their example. The idea was to deprive him of a majority
of electoral votes and
throw the election into the House of Representatives. So
the three Electors
voted for Colin Powell for President. But their effort
failed. Only seven
electors across the Nation cast faithless votes—the most
in a century, but well
short of the goal. Candidate Trump became President
Trump. And, more to the
point here, the State fined the Electors $1,000 apiece
for breaking their
pledges to support the same candidate its voters had. The Electors challenged their fines
in state court, arguing
that the Constitution gives members of the Electoral
College the right to vote
however they please. The Washington Superior Court
rejected the Electors’ claim
in an oral decision, and the State’s Supreme Court
affirmed that judgment.The
court relied heavily on our decision in Ray v. Blair
upholding a pledge requirement—though
one without a penalty to back it up. In the state
court’s view, Washington’s
penalty provision made no difference. Article II of the
Constitution, the court
noted, grants broad authority to the States to appoint
electors, and so to impose
conditions on their appointments. And nothing in the
document “suggests that
electors have discretion to cast their votes without
limitation or restriction
by the state legislature.” A few months later, the United States
Court of Appeals for
the Tenth Circuit reached the opposite conclusion in a
case involving another
faithless elector. See Baca v. Colorado Dept. of State,
935 F.3d 887 (2019).
The Circuit Court held that Colorado could not remove
the elector, as its
pledge law directs, because the Constitution “provide[s]
presidential electors
the right to cast a vote” for President “with
discretion.” We granted certiorari to resolve the
split. 589 U. S. ___
(2020). We now affirm the Washington Supreme Court’s
judgment that a State may
enforce its pledge law against an elector. II As the state court recognized, this
Court has considered
elector pledge requirements before. Some seventy years
ago Edmund Blair tried
to become a presidential elector in Alabama. Like all
States, Alabama lodged
the authority to pick electors in the political parties
fielding presidential
candidates. And the Alabama Democratic Party required a
pledge phrased much
like Washington’s today. No one could get on the party’s
slate of electors
without agreeing to vote in the Electoral College for
the Democratic
presidential candidate. Blair challenged the pledge
mandate. He argued that the
“intention of the Founders was that [presidential]
electors should exercise
their judgment in voting.” The pledge requirement, he
claimed, “interfere[d]
with the performance of this constitutional duty to
select [a president]
according to the best judgment of the elector.” Our decision in Ray rejected that
challenge. “Neither the
language of Art. II, §1, nor that of the Twelfth
Amendment,” we explained,
prohibits a State from appointing only electors
committed to vote for a party’s
presidential candidate. Nor did the Nation’s history
suggest such a bar. To the
contrary, “[h]istory teaches that the electors were
expected to support the
party nominees” as far back as the earliest contested
presidential elections.
“[L]ongstanding practice” thus “weigh[ed] heavily”
against Blair’s claim. And
current voting procedures did too. The Court noted that
by then many States did
not even put electors’ names on a presidential ballot.
The whole system
presupposed that the electors, because of either an
“implied” or an “oral
pledge,” would vote for the candidate who had won the
State’s popular election.
Ibid. Ray, however, reserved a question not
implicated in the
case: Could a State enforce those pledges through legal
sanctions? Or would
doing so violate an elector’s “constitutional freedom”
to “vote as he may
choose” in the Electoral College? Today, we take up that
question. We uphold
Washington’s penalty-backed pledge law for reasons much
like those given in
Ray. The Constitution’s text and the Nation’s history
both support allowing a
State to enforce an elector’s pledge to support his
party’s nominee—and the
state voters’ choice—for President. A Article II, §1’s appointments power
gives the States
far-reaching authority over presidential electors,
absent some other
constitutional constraint. As noted earlier, each State
may appoint electors
“in such Manner as the Legislature thereof may direct.”
This Court has described
that clause as “conveying the broadest power of
determination” over who becomes
an elector. And the power to appoint an elector (in any
manner) includes power
to condition his appointment—that is, to say what the
elector must do for the
appointment to take effect. A State can require, for
example, that an elector
live in the State or qualify as a regular voter during
the relevant time
period. Or more substantively, a State can insist (as
Ray allowed) that the
elector pledge to cast his Electoral College ballot for
his party’s
presidential nominee, thus tracking the State’s popular
vote. (A pledge
requirement “is an exercise of the state’s right to
appoint electors in such
manner” as it chooses). Or—so long as nothing else in
the Constitution poses an
obstacle—a State can add, as Washington did, an
associated condition of
appointment: It can demand that the elector actually
live up to his pledge, on
pain of penalty. Which is to say that the State’s
appointment power, barring
some outside constraint, enables the enforcement of a
pledge like Washington’s. And nothing in the Constitution
expressly prohibits States
from taking away presidential electors’ voting
discretion as Washington does.
The Constitution is barebones about electors. Article II
includes only the
instruction to each State to appoint, in whatever way it
likes, as many
electors as it has Senators and Representatives (except
that the State may not
appoint members of the Federal Government). The Twelfth
Amendment then tells
electors to meet in their States, to vote for President
and Vice President
separately, and to transmit lists of all their votes to
the President of the
United States Senate for counting. Appointments and
procedures and . . . that
is all. . . The Electors argue that three simple
words stand in for more
explicit language about discretion. Article II, §1 first
names the members of
the Electoral College: “electors.” The Twelfth Amendment
then says that
electors shall “vote” and that they shall do so by
“ballot.” The “plain
meaning” of those terms, the Electors say, requires
electors to have “freedom
of choice.” If the States could control their votes,
“the electors would not be
‘Electors,’ and their ‘vote by Ballot’ would not be a
‘vote.’ ” But those words need not always
connote independent choice.
Suppose a person always votes in the way his spouse, or
pastor, or union tells
him to. 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. Or similarly, suppose in a system
allowing proxy voting (a
common practice in the founding era), the proxy acts on
clear instructions from
the principal, with no freedom of choice. Still, we
might well say that he cast
a “ballot” or “voted,” though the preference registered
was not his own. 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. The point of all
these examples is to
show that although voting and discretion are usually
combined, voting is still
voting when discretion departs. Maybe most telling,
switch from hypotheticals
to the members of the Electoral College. For centuries
now, as we’ll later
show, almost all have considered themselves bound to
vote for their party’s
(and the state voters’) preference. Yet there is no
better description for what
they do in the Electoral College than “vote” by
“ballot.” And all these years
later, everyone still calls them “electors”—and not
wrongly, because even
though they vote without discretion, they do indeed
elect a President. The Electors and their amici object
that the Framers using
those words expected the Electors’ votes to reflect
their own judgments.
Hamilton praised the Constitution for entrusting the
Presidency to “men most
capable of analyzing the qualities” needed for the
office, who would make their
choices “under circumstances favorable to deliberation.”
So too, John Jay
predicted that the Electoral College would “be composed
of the most enlightened
and respectable citizens,” whose choices would reflect
“discretion and
discernment.” But even 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. All that they
put down about the electors was what we have said: that
the States would
appoint them, and that they would meet and cast ballots
to send to the Capitol.
Those sparse instructions took no position on how
independent from—or how
faithful to—party and popular preferences the electors’
votes should be. On
that score, the Constitution left much to the future.
And the future did not
take long in coming. Almost immediately, presidential
electors became trusty
transmitters of other people’s decisions. B “Long settled and established
practice” may have “great
weight in a proper interpretation of constitutional
provisions.” The Electors
make an appeal to that kind of practice in asserting
their right to
independence. But “our whole experience as a Nation”
points in the opposite direction.
Electors have only rarely exercised discretion in
casting their ballots for
President. From the first, States sent them to the
Electoral College—as today
Washington does—to vote for pre-selected candidates,
rather than to use their
own judgment. And electors (or at any rate, almost all
of them) rapidly settled
into that non-discretionary role. Begin at the beginning—with the
Nation’s first contested
election in 1796. Would-be electors declared themselves
for one or the other
party’s presidential candidate. (Recall that in this
election Adams led the
Federalists against Jefferson’s Republicans.) In some
States, legislatures
chose the electors; in others, ordinary voters did. But
in either case, the
elector’s declaration of support for a
candidate—essentially a pledge—was what
mattered. Or said differently, the selectors of an
elector knew just what they
were getting—not someone who would deliberate in good
Hamiltonian fashion, but
someone who would vote for their party’s candidate.
“[T]he presidential
electors,” one historian writes, “were understood to be
instruments for
expressing the will of those who selected them, not
independent agents
authorized to exercise their own judgment.” And when the
time came to vote in
the Electoral College, all but one elector did what
everyone expected,
faithfully representing their selectors’ choice of
presidential candidate. The Twelfth Amendment embraced this
new reality—both
acknowledging and facilitating the Electoral College’s
emergence as a mechanism
not for deliberation but for party-line voting. Remember
that the Amendment
grew out of a pair of fiascos—the election of two
then-bitter rivals as
President and Vice President, and the tie vote that
threw the next election
into the House. Both had occurred because the
Constitution’s original voting
procedures gave electors two votes for President, rather
than one apiece for
President and Vice President. Without the capacity to
vote a party ticket for
the two offices, the electors had foundered, and could
do so again. If the
predominant party’s electors used both their votes on
their party’s two
candidates, they would create a tie (see 1800). If they
intentionally cast
fewer votes for the intended vice president, they risked
the opposite party’s
presidential candidate sneaking into the second position
(see 1796). By
allowing the electors to vote separately for the two
offices, the Twelfth
Amendment made party-line voting safe. The Amendment
thus advanced, rather than
resisted, the practice that had arisen in the Nation’s
first elections. An
elector would promise to legislators or citizens to vote
for their party’s
presidential and vice presidential candidates—and then
follow through on that
commitment. Or as the Court wrote in Ray, the new
procedure allowed an elector
to “vote the regular party ticket” and thereby “carry
out the desires of the
people” who had sent him to the Electoral College. No
independent electors need
apply. Courts and commentators throughout
the 19th century
recognized the electors as merely acting on other
people’s preferences. Justice
Story wrote that “the electors are now chosen wholly
with reference to
particular candidates,” having either “silently” or
“publicly pledge[d]” how
they will vote. “[N]othing is left to the electors,” he
continued, “but to
register [their] votes, which are already pledged.”
Indeed, any “exercise of an
independent judgment would be treated[ ] as a political
usurpation,
dishonourable to the individual, and a fraud upon his
constituents.” Similarly,
William Rawle explained how the Electoral College
functioned: “[T]he electors
do not assemble in their several states for a free
exercise of their own
judgments, but for the purpose of electing” the nominee
of “the predominant
political party which has chosen those electors.”
Looking back at the close of
the century, this Court had no doubt that Story’s and
Rawle’s descriptions were
right. The electors, the Court noted, were chosen
“simply to register the will
of the appointing power in respect of a particular
candidate.” State election laws evolved to
reinforce that development,
ensuring that a State’s electors would vote the same way
as its citizens. As
noted earlier, state legislatures early dropped out of
the picture; by the
mid-1800s, ordinary voters chose electors. See supra, at
4. Except that
increasingly, they did not do so directly. States listed
only presidential
candidates on the ballot, on the understanding that
electors would do no more
than vote for the winner. Usually, the State could
ensure that result by appointing
electors chosen by the winner’s party. But to remove any
doubt, States began in
the early 1900s to enact statutes requiring electors to
pledge that they would
squelch any urge to break ranks with voters. See supra,
at 5. Washington’s law,
penalizing a pledge’s breach, is only another in the
same vein. 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. The history going the opposite way is
one of anomalies only.
The Electors stress that since the founding, electors
have cast some 180
faithless votes for either President or Vice President.
But that is 180 out of
over 23,000. And more than a third of the faithless
votes come from 1872, when
the Democratic Party’s nominee (Horace Greeley) died
just after Election Day.
Putting those aside, faithless votes represent just
one-half of one percent of
the total. Still, the Electors counter, Congress has
counted all those votes.
But because faithless votes have never come close to
affecting an outcome, only
one has ever been challenged. True enough, that one was
counted. But the
Electors cannot rest a claim of historical tradition on
one counted vote in
over 200 years. And anyway, the State appointing that
elector had no law
requiring a pledge or otherwise barring his use of
discretion. Congress’s
deference to a state decision to tolerate a faithless
vote is no ground for
rejecting a state decision to penalize one. III The Electors’ constitutional claim
has neither text nor
history on its side. Article II and the Twelfth
Amendment give States broad
power over electors, and give electors themselves no
rights. Early in our
history, States decided to tie electors to the
presidential choices of others,
whether legislatures or citizens. Except that
legislatures no longer play a
role, that practice has continued for more than 200
years. Among the devices
States have long used to achieve their object are pledge
laws, designed to
impress on electors their role as agents of others. A
State follows in the same
tradition if, like Washington, it chooses to sanction an
elector for breaching
his promise. Then too, the State instructs its electors
that they have no
ground for reversing the vote of millions of its
citizens. That direction
accords with the Constitution—as well as with the trust
of a Nation that here,
We the People rule. The judgment of the Supreme Court of
Washington is affirmed. |