Select Page

Do We Really Need the Supreme Court to Decide the “Faithless Elector” Cases Now?

The folks over at Scotusblog have organized an online symposium (available here) focused on the two “faithless elector” cases—Chiafalo v. Washington and Colorado v. Baca—and my submission to the symposium (“Constitutional Doctrine and Political Reality in the Faithless Elector Cases”) is posted here.  Oral argument is now set for May 13 (with live audio to be provided to the public, I’m told). [For general background, see my earlier postings on the cases here and here].

I’ve puzzled over these cases a good deal over the past several years. Michael Rosin and I submitted amicus briefs at the appellate stage, and to the Supreme Court at the cert and merits stage, in both cases. And as I’ve thought more about them, I’ve had something of a change of heart about what the Court should do.

At bottom, the cases are pretty simple. Hillary Clinton won a plurality of the popular vote in Washington and Colorado in 2016. WA and CO law required each of its presidential electors to cast their electoral ballots for her.  Several electors in each state did not to do so, voting instead for Colin Powell (WA) and John Kasich (CO). In CO, these so-called “faithless electors” were removed from their positions by the CO Attorney General before the final tally was taken and replaced with others who cast their ballots as directed; in WA, the electors were each fined $1000.

The issue in the cases is whether states may try to control the conduct of their electors by punishing them for acting contrary to their instructions. [Whether Congress may do so or not is a trickier question, and one not before the Court.]

I remain of the opinion [as expressed here and here] that the electors have the better of the constitutional argument.  States have absolute constitutional authority to appoint electors however they wish; but once electors have been appointed, they are federal government officials, performing a federal government function, and states may not interfere with the performance of federal functions by federal officials.

But having said that, I doubt that we will be well-served, now, by a Supreme Court opinion to that effect. “Supreme Court to Electors: Vote as You Please” is not a headline that I hope to see at a time when our political institutions are under the strain that they are under. As I put it in the Scotusblog essay:

This strikes me as a singularly inopportune moment for the Court to be entering this fray. Not only are we in the midst of a social and economic crisis of unprecedented magnitude, but the final stage of a presidential campaign that is likely to be unusually bitter and contentious is about to begin. Constitutional doctrine and constitutional history may weigh heavily, as I believe they do, in the electors’ favor here. But affirming the electors’ independence from state control now – giving our political system no real opportunity to digest and adjust to the news before the next presidential election is upon us – strikes me as unwise. We have muddled through without clarification on this question for 200 years; another one won’t kill us.

The pandemic gives the Court the opportunity to move this case, as it has moved a number of other cases, onto next year’s calendar. I’m very sorry it hasn’t – yet – seized it.



This post has been republished with permission from a publicly-available RSS feed found on Reason. The views expressed by the original author(s) do not necessarily reflect the opinions or views of The Libertarian Hub, its owners or administrators. Any images included in the original article belong to and are the sole responsibility of the original author/website. The Libertarian Hub makes no claims of ownership of any imported photos/images and shall not be held liable for any unintended copyright infringement. Submit a DCMA takedown request.

-> Click Here to Read the Original Article <-

About The Author

David Post

Founded in 1968, Reason is the magazine of free minds and free markets. We produce hard-hitting independent journalism on civil liberties, politics, technology, culture, policy, and commerce. Reason exists outside of the left/right echo chamber. Our goal is to deliver fresh, unbiased information and insights to our readers, viewers, and listeners every day. Visit

Leave a reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.


Bringing together a variety of news and information from some of today’s most important libertarian thought leaders. All feeds are checked and refreshed every hour and pages auto-refresh every 15 minutes. External images are deleted after 30 days.

Time since last refresh: 0 second

Publish Your Own Article

Follow The Libertarian Hub

Please consider donating using any of the cryptocurrencies below or use the Brave browser to tip using Basic Attention Tokens (BAT). Your anonymous contributions help keep this website running for everyone to enjoy!


Take Control of Your Domain Names
The Ultimate Managed Hosting Platform

Weekly Newsletter

Newsletter Signup

Subscribe to our newsletter to receive a weekly email report of the top five most popular articles on the Libertarian Hub!

Weekly Newsletter SignupTop 5 Stories of the Week

Subscribe to our newsletter to receive a weekly email report of the top five most popular articles on the Libertarian Hub!