The (Un)Constitutionality of State Laws against Faithless Electoral College Electors

As a result of having fewer popular votes than Hillary Clinton, as well as his controversial candidacy more generally, there’s some discussion whether Trump’s Electoral College electors could vote for someone else for president. Given that somewhere over 100 electors throughout U.S. history have voted for candidates other than those they were elected to vote for, it’s an interesting constitutional question even outside the contours of this particular election. My sense is that, constitutionally, the decision of whom to vote for is entirely up to the electors themselves, even in states with laws requiring electors to vote for the candidate they were elected to vote for.

According to the Congressional Research Service, twenty-five states neither require electors to pledge to vote for the presidential candidate they were elected to vote for, nor do they respond to or punish electors who vote for someone else. Electors in these states may legally vote for whomever they wish.

The other twenty-five states and the District of Columbia impose various obligations on electors. Most require no more than a pledge from electors to vote for the candidate they were elected to support. A few states provide for the replacement of “faithless” electors should an elector attempt to vote for a candidate other than whom they pledged to support. A few states provide criminal penalties for faithless electors.

The question concerns the constitutionality of these various state laws.

Article II, section 1 of the Constitution provides,

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.

An argument in favor of the constitutionality of state provisions binding electors to vote for the candidate they were selected to vote for follows from this provision: The “manner” in which a state legislature directs its state to appoint electors, the argument goes, can include requirements that those electors actually vote for whom they were elected to support.

Some case law exists supporting this interpretation. In the 1952 case of Ray v. Blair, the Supreme Court upheld a pledge requirement for candidates running for the position of elector for the Democratic Party in Alabama to be listed on the state’s primary ballot. (Apparently at the time, Democratic presidential electors in Alabama were selected by popular vote in the state’s spring primary election.) Justice Reed wrote for the Court:

A state’s or a political party’s exclusion of candidates from a party primary because they will not pledge to support the party’s nominees is a method of securing party candidates in the general election, pledged to the philosophy and leadership of that party. It is an exercise of the state’s right to appoint electors in such manner, subject to possible constitutional limitations as it may choose.

The last sentence suggests the Constitution authorizes state-level pledge requirements as part of Article II’s provision requiring state governments to “appoint [electors], in such manner as the legislature thereof may direct.”

Despite the broad language of that sentence, the Court’s holding in the case was narrow. Reed wrote that the holding in Ray applied only to an elector’s name being placed on a ballot for a primary election. Reed wrote just a few paragraphs later that even if such pledges could not be constitutionally enforced regarding the elector’s actual Electoral College vote after the general election, that did not imply eliciting the pledge as a condition for a party selecting an elector was also unconstitutional.

I think there’s reason to doubt whether Ray would be upheld by the U.S. Supreme Court today, at least as it pertains to state laws requiring pledges, and, even if it were, I doubt that the Supreme Court would extend its reasoning beyond the facts in Ray to uphold a state law taking action against a faithless elector.

In particular, the arguments the Supreme Court developed in U.S. Term Limits, Inc. v. Thornton (1995) plausibly cast the issue in a different textual light than discussed in Ray, suggesting that states cannot add additional qualifications to electors beyond those stated in the Constitution itself.

In U.S. Term Limits, the Supreme Court struck down an Arkansas law placing term limits on congressional candidates in the state. The Court developed several lines of argument to support its decision, most narrowly that the Constitution itself specified the qualifications for being a U.S. House member or U.S. Senator (Art. 1, sec. 2, cl. 2, and Art. 1, sec 3, cl. 3, respectively), and states (nor Congress for that matter) couldn’t impose additional qualifications for those offices.

These grounds are suggestive for Electoral College electors as well. As with House members and senators, Article II expressly states qualifications for being an elector, to wit, “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” This militates against a broad reading of the Court’s interpretation of the “manner” provision in Article II in Ray to include substantive requirements beyond merely specifying a process to select electors. Additionally, the Constitution itself also expressly identifies whom electors cannot vote for. According to the Twelfth Amendment, electors cannot vote for a presidential candidate from their own state if they vote for a vice-presidential candidate from their own state (and vice versa).

So the Constitution already articulates qualifications for who can and who cannot be an elector, and already articulates limitations on whom electors can vote for.

To be sure, there are other structural and policy arguments that need to be visited. Nonetheless, the arguments in U.S. Term Limits provide a more-careful reading of the Constitution itself relative to the general policy arguments of the Court in Ray. It seems a reasonable reading of the text to conclude that the Constitution itself, as it were, regulates the field in this matter, and states have little discretion additionally to restrict the votes of their electors beyond those imposed by the Constitution itself.

James R. Rogers

James Rogers is associate professor of political science at Texas A&M University, and is a fellow with the Institute for Science, Technology and Public Policy at the Bush School of Government and Public Service. He also served as editor of the Journal of Theoretical Politics from 2006 through 2013.

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  1. gabe says

    Anyone want to be further confused, try this:

    http://law2.umkc.edu/faculty/projects/ftrials/conlaw/elector1787.html

    It appears our Founders did not hold the people, and the peoples ability to properly judge candidates, in very high regard. Nor did they consider either the Senate or State Legislatures as either fully competent or free from factional influence in the matter of (s)electing a Chief Magistrate. A primary concern was fear of intrigue, cabals, and corruption.
    It is rather confusing – but one thing is clear: They did not want “direct” election of the Chief Magistrate by the people. Is the lack of a constitutional requirement binding Electors to vote per popular vote a response to this *distrust* of the voters?

  2. gabe says

    On a different track:

    Term Limits case: Yep, Court was probably right that States and Congress cannot add additional qualifications – but isn’t that because the Constitution clearly lists “the” qualifications with some specificity.

    Re: electors, there is no clear qualifications stated other than what they cannot be(officeholder) and the States are free to appoint in any “manner” that they so choose. Is not the “officeholder” clause a simple exception, AND nothing more to the otherwise unrestricted right of a State Legislature to appoint whomever they please as well as binding them (or for that matter, “unbinding” them).

    Suppose a Legislature required electors to split votes proportionally per popular vote (as some do). Is this not an “additional” qualification and ought not it to be disallowed. It is, in effect, *binding* the elector to a popular vote. And just for the fun of it, in a proportional scenario, which elector gets to vote for the minority candidates. So if this is allowed, (and it is done in some states) how is it States can not be constitutionally permitted to place qualifications on electors?

    I’ll take it one further, why can not the State Legislature simply say that electors will vote in proportion to the new or current composition of the State Legislature or its representation in Congress? This also would be “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 ”

    A rather odd kettle of fish this Electoral College – or is it just the legal reasoning surrounding this kettle of fish?

  3. Scott Amorian says

    It’s fairly obvious from the construction of the college that the Framers intended the electors to be free to vote according to conscience. Otherwise, why even have the college?

    Without the college the legislatures would delegate votes directly. But that isn’t how the process was set up to work. The electoral college provides a buffer between the legislatures and the choosing of the president and VP. It cannot provide that buffer if it is commanded how to vote by its legislature. Without liberty to vote according to conscience, the electors become a direct proxy for the legislatures, which is what the design of the college attempts to prevent.

    • gabe says

      Yeah, but that is not what the Framers argued about, nor did they seriously discuss the issue of conscience. Mostly, it appears that they were simultaneously wary of the voters, the US Senate (less so the House) and the State Legislatures.

      One CAN infer from their actions, both in the college and with respect to original (s)election of US Senators that they may have appreciated “conscience” and a “separation from the voters – but the original manner of US Senate selection may also argue against conscience and (perhaps as a last resort) a reluctant reliance upon the Legislature.

      It is not altogether clear precisely what they intended other than it not be by direct popular vote and as always there is the undercurrent of Federalism, i.e., a respect for the position, power and prerogative of the States.
      And this would indicate that the “manner” clause would provide leeway / discretion to the States to, perhaps, bind the Electors.

      • Scott Amorian says

        We can’t know what motivated the Framers, not even using references such as Madison’s papers, personal letters, etc. A lot of the discussions happened outside of the formal debates. During the debates people may have argued a point for “vote trading” purposes. There really is no way to determine absolutely the original intents in the minds of the Framers based on historical writings.

        However, we can infer intentions based on the architecture they put into the Constitution itself. And we can look at how ratifiers viewed the document.

        Again, why have an electoral college if the college just repeats the wills of the state legislatures? Why not go straight to those bodies? Why add the extra step for selecting a president and VP?

        Because the college serves some purpose. And that purpose must be to prevent the legislatures from electing the president, either directly or through a popular vote (per the instructions of the state legislature).

        I would much rather see the college hiring a president and VP the same way I hire people at work. You take a job description and stack of resumes and have a series of interviews and you choose the best match for the position. The political process used to hire a chief executive is sheer, utter and complete nonsense. It’s an invitation to disastah! I imagine that my boss would think me insane if I hired an employee using the same criteria used to elect a president. The college should be hiring the best employee, not running through the bizarre maze of populism like they do. I don’t think the practice of letting the legislatures direct the electors is good for America. And I don’t think it’s even constitutional, given its architecture.

        • Jimbo says

          If my high school civics classes were correct, the argument that won among the framers was that the common man (in that age before telephone, telegraph, radio, TV, internet and even Pony Express for God’s sake) was not well enough informed to select President. While it was fine to be guided by their opinion, we needed an additional check and balance to keep the country safe. What if a shifty, untrustworthy con man held sway, with no experience to point to to be assured of his ability to govern?

          So they inserted another layer. They went to the trouble of making sure that this layer, the Electoral College, was not composed of anyone elected to Federal office, so the government would be broader and not ruled by the few.

          Ironic that it is this layer itself that causes the very problem they feared in the 2016 election.

      • gabe says

        Oops, upon re-reading this, it may appear that I was being dismissive of the conscience argument advanced by Scott.

        Poor wording on my part.

        Try to correct as follows.

        An argument can be reasonably be made for the conscience argument. In shorthand version, if one considers that Madison and the boys had hoped to create an “aristoi” of governance, an assemblage of “virtuous” citizens, an elite of sorts, then the “conscience” proposition has a reasonably solid footing. After, was this not what the US Senate was supposed to be?

        where I may differ is as follows:

        It is not altogether clear, to my mind, that this was their intent or perhaps, that other concerns of the
        Framers did not have either equal or greater import in their final compromise

        Then again, looking at the (s)election of the Senate, we have to ask: “If virtue was to be the prime consideration for the Senate, how is it that the Framers decided to place the Senate selection process in the hands of highly partisan, and obviously less than virtuous, State Legislatures?”

        Could it be that the *affection* that the Framers held for the States as States was what finally enabled them to let the State Legislatures the freedom to exercie their prerogative “in a manner” of their choosing?

        (As Patton said in the movie: “with this, I have struggled mightily”)

        ALSO: If there is / are any good researchers out there: Can someone tell me where I may find a complete transcript of the debates on the Electoral College. I should like to follow up on this.

  4. gabe says

    Now with the assertion that we *hire* our Chief Magistrate in a “manner” similar to the process a private employer uses – I disagree with that one.
    First, we are not hiring an employee for a small (yes, even M-Soft or GM) is small. Nor is that private business properly concerned with the type of policy prescriptions required of a Chief Magistrate. Also, the decision to enter into a corporation is voluntary – not so (generally speaking) with citizenship / participation in a civic polity. Corporations may not exercise the type of force that is the hallmark of government. We can go on – but it ain’t necessary.

    Additionally, having in my early years, an additional responsibility for both recruiting and hiring highly skilled personnel and Executives, I can assure you that the process is fraught with many difficulties and is far from scientific – sometimes bordering on the irrational. There is a presumption of knowledge on both the part of the job-seeker and the hiring authorities that all too often is simply not present.

    Lastly, does one not see in such a proposal all the elements of the Wilsonian paradigm of “governance” by a body of experts, by an elite. Would this not be the logical extension of the intellectual affectations of the Administrative State where a legion of “well educated” specialists deign to reign over us by virtue of their specialized expertise?

    I think that such a “manner” of election would go far beyond the Framers (and my own) recognition of the need for virtue in governance by reducing the definition of virtue to that definition espoused solely by a mere handful of “specialized” electors.

    Nope, I’ll cast my lot with the rest of the knuckleheads like me!
    Hey sometimes we dun good, an’ sometimes we dun bad!
    I can live with it. I have had my share of experts to last me two more lifetimes.

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