The Unconstitutionality of Prohibiting Faithless Electors

Recently, there has been a bit of an originalist debate about the issue of the “faithless elector.”  David Post argues that “the original intent of the Constitution, supported by its text and overall structure, not only permits but also ‘requires’ presidential electors to exercise ‘discretion and independent judgment’ in casting their ballots.  Mike Ramsey responds that the original meaning of the constitutional text – both the original Constitution and the 12th Amendment – allows the states to select electors “based on the electors’ advance pledge to vote for a particular candidate.  There is no textual duty to exercise independent judgment.”

I tend to agree here with Mike and commend his post to all readers.  The constitutional text, as Mike describes it, “says two relevant things: (a) ‘Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors …’ and (b) ‘The electors shall meet in their respective states, and vote by ballot for President and Vice President…’”  Although the text is not crystal clear, there does not appear to be a prohibition on the states deciding only to select electors who have pledged to vote for a particular candidate.

That said, I want to move on to a related issue that is not addressed in the Post/Ramsey exchange.  Is it constitutional for a state to require that the elector actually vote for the pledged candidate?  Many states have such laws.  While one might extend Ramsey’s argument to cover this situation, I don’t think it can be extended that far.  And therefore I tentatively conclude that the original meaning forbids such prohibitions.

What is the difference here?  The Constitution allows the state to appoint “in such Manner as the Legislature thereof may direct” the electors.  The key is drawing a distinction between appointing the electors and controlling the electors’ behavior once they have been selected.  The Constitution appears to draw this distinction, allowing the states to appoint the electors, but not appearing to give the state any authority over how the electors vote, stating only that the electors shall meet in their states to cast their ballots.

A law that says that only electors who are pledged to a candidate may run for office appears to involve the appointment method of the electors.  The pledge is a statement made prior to the selection of the electors and thus part of the appointment method.  By contrast, a law that requires the electors to vote for the pledged candidate crosses the line and purports to regulate how the electors vote.

Here I believe the type of evidence that Post and others rely upon (such as Alexander Hamilton’s statement from the Federalist Papers) is relevant.  That evidence supports my reading of the text.  One might doubt my reading of the text if one believed that the purpose of the provision was to allow the states to necessarily control the electors’ votes.  But that evidence suggests that was not necessarily the purpose, since it was certainly contemplated that independent judgment would occur.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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Comments

  1. gabe says

    Well, how about this:

    If the constitution is silent, then the specific details, i.e., “the manner’ in, and by, which the Several States *appoint* is clearly left to the discretion of the States. Recall that this was a Federal system that the Framers were “expounding” and one ought to consider the whole import of such a Federal system. In a sense, to my mind, this clause is not altogether different than other clauses, left purposively somewhat vague, i.e., P&I clause, etc, as a recognition of the (semi-) sovereign status of the Several States.

    We seem, all too often, to prefer a higher degree of dissection than may otherwise be called for when considering certain clauses. So much of the text was a product of *constitutional compromise* required in order to achieve the consent of a sufficient number of individual, (semi)sovereign political entities, States, and it is more than likely that the *ambiguous* wording reflects nothing more than obeisance to the *sovereignty* of the Several States.

    Here is the link Mike refers to:

    http://originalismblog.typepad.com/the-originalism-blog/2016/12/faithless-electors-and-the-constitutionmichael-ramsey.html

    And here is an example of *overly dissected* analysis by some Progressive chowderhead:

    http://originalismblog.typepad.com/the-originalism-blog/2016/12/kenneth-jost-on-the-electoral-college-and-one-person-one-vote-michael-ramsey.html

  2. Devin Watkins says

    I 100% agree with you. The state can choose any method of selecting electors, including requiring them to pledge their support for a candidate. But it cannot legally prohibit them from voting for whoever they choose to vote for. (All those laws purporting to do so are unconstitutional).

    • Devin Watkins says

      So what do you think of what happened in Minnesota? An elector this year, Muhammad Abdurrahman, voted for Bernie Sanders when he was pledged to vote for Hillary Clinton. So the Secretary of State Steve Simon then announced “This ballot, these ballots for president of the United States and vice president of the United States will not be counted.” Muhammad Abdurrahman was removed and an “altnerate” elector was put in his place and voted.

      To me this was totally unconstitutional.

      Here is what Minnesota statute says:

      If an elector fails to cast a ballot for the presidential or vice presidential candidate of the party under whose name the elector was chosen, the elector’s vote or abstention is invalidated and an alternate presidential elector, chosen by lot from among the alternates, shall cast a ballot in the name of the elector for the presidential and vice presidential candidate of the party under whose name the elector was chosen. The invalidation of an elector’s vote or abstention on the ballot for president or vice president does not apply if the presidential candidate under whose party’s name the elector was chosen has without condition released the elector or has died or become mentally disabled.

      https://www.revisor.leg.state.mn.us/statutes/?id=208.08&year=2008

    • gabe says

      Devin:

      I see this “unconstitutional” argument in various places.

      Yet, can someone cite a specific clause / text / prohibition in the document that tells me that a State, a “sovereign* (with due qualifications, of course) cannot so direct, and legally enforce such directive, against its electors appointed in the manner that the State has so chosen.

      Where is this to be found.

      Does silence imply assent or negation?
      Is there any countervailing Federal Statute prohibiting the States from so directing their electors.

      To argue that “appoint” is limited only to the act of appointing avoids confronting the issue of State powers and Federal structure and would also appear to indicate a low regard for the intelligence and observation powers of the Framers as surely they also knew that those appointed would also be required to cast a vote.

      • Devin Watkins says

        Can the legislature threaten to imprison United States Rep. or Senators if they don’t vote as the state wishes? Electors are just as much federal officers and under the Supremacy Clause cannot be compelled in their actions by state law. The state can choose who they are, but that’s all the state can do.

        Anyway, its also in violation of federal law.

        3 U.S.C. § 1. The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.

        3 U.S.C. § 5. If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

        • gabe says

          These appear to me to be nothing more than an attempt to assure that any controversy regarding the *appointment* of an *elector* shall be handled in a prompt and consistent manner. Nothing in them prohibits a State from binding their electors.

          Also, congressional representatives are elected for their *judgment* and to exercise that judgment in a variety of areas / issues affecting more than just the State in question; can this truly be said of “electors” who are *appointed* for one specific and limited purpose and the most certain criteria of that appointment is that “they vote for who they say they are going to vote for.”

          A tad bit of difference here, wouldn’t you say?

          • Devin Watkins says

            The law I cited doesn’t, by itself, show that the state cannot criminalize or punish an elector for voting differently then the executive of the state wants. But what it does show, is that once a state chooses an elector it cannot, consistent with federal law, change it’s mind closer then six days prior to the date the electors vote. Two states (Minnesota and Colorado) replaced electors on the day of the vote because they wouldn’t vote as the state wanted them to. Such actions are prohibited by federal law.

            As to if the state can criminalize or punish the electors for voting differently then the state wants, I think this falls under the general prohibition on states regulating the discretion of any federal government official. As first decided in In re Neagle
            135 U.S. 1 (1890), “Neagle established a two-prong test for this type of immunity from state criminal law: (1) Was the officer performing an act that federal law authorized him to perform? (2) Were his actions necessary and proper to fulfilling his federal duties? If the federal officer satisfies this test, he or she is immune from prosecution for violation of state law.”: http://biotech.law.lsu.edu/map/LiabilityofaFederalOfficerunderStateLaw.html

            Electors clearly fall within the scope of this, and as such they are absolutely immune from all state criminal law when casting their vote.

    • ENG says

      Dear Devin Watkins

      You are mixing things up in order to reach your Nirvana of having a punch of appointees to ruin our election results. No the electors are not like Senators or Congressmen. Also the farce in your argument says that states can “requiring them to pledge their support for a candidate” but at the same time can’t penalize or replace them for violating the pledge?! What’s the point of the pledge then? 30 states and DC have laws against such farce attempt to turn the elections into a circus where “hero wanna-be” electors vote for people who didn’t even run for the election. Nothing in the text restrain the states other than the electors should not be members of congress. Period. The ship have sailed

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