The Return of the Faithless Elector

You may recall much discussion, in the aftermath of the 2016 presidential election, of the possibility that presidential electors—the folks who, under our constitutional scheme, actually elect our president and vice-president**—can (or should) exercise their independent judgment and discretion and cast their ballots for the candidate they feel best suited to assume the office of President, even if that candidate lost the popular vote in the elector’s home state.

** “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.” These presidential electors shall then “convene in their respective states” and “vote by [distinct] ballot for President and Vice-President”; the person “receiving [a majority] of votes for President shall be the President … and the person receiving [a majority] of votes for Vice-President shall be the Vice President.”  U.S. Const. art. II, § 1, cl. 2, and Amendment XII.

Last week, the 10th Circuit Court of Appeals weighed in on this “faithless elector” question in its opinion in Baca v. Colorado Dep’t of State, invalidating the Colorado Secretary of State’s efforts to control voting behavior by the State-appointed presidential electors.  It’s an important decision, and it might—might – lead to far-reaching changes in the way that Americans conduct and view their presidential elections.

You would be forgiven for not paying a lot of attention to the inner workings of the (oddly-named) “Electoral College”—the actual institution, comprised of 538 State-appointed presidential electors—because under long-standing practice, developed over the past 220 years or so, the Electoral College doesn’t really do anything other than to formally and ceremonially ratify the results of the presidential election. We hold an election, we count the votes for each candidate in each of the States, we place the number of presidential electors (“electoral votes”) to which each State is constitutionally entitled (#Representatives + #Senators; see above) into the winning candidate’s column, we add up the columns, and that’s that—game over.  The Electoral College’s formal ratification of the results a month or so post-election is a mere after-thought, a little bit of Kabuki democracy that has only symbolic significance.

It is abundantly clear that the Electoral College was not designed to have this kind of purely ceremonial function**. Under the Framers’ original conception, the Electoral College was to be a true electoral body, its members chosen by the people at large (at least the people who were entitled to vote) for the express purpose of choosing the President and Vice-President. That’s why they were called “electors”- people who “elect.”

** For the record, Michael Rosin and I submitted an amicus brief in this case making this point (available here).  David Kopel, here on the VC, and Robert Delahanty in the Cardozo Law Review, have also marshalled the relevant historical information in support of this position.

The Federalist Papers, for instance, couldn’t be clearer on this score.  The Electoral College was, as Hamilton put it in No. 60, part of a balancing scheme using “dissimilar modes of constituting the several component parts of the government: The House of Representatives being elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people.” It was part of a kind of “distillation” process that would help ensure, hopefully, that the officers of the new federal government would be the most qualified people (and would, because of their different modes of selection, balance out each other’s different passions and predilections); the people would directly elect their Representatives, and for the other federal offices they would elect people who would elect people (their State legislators for their Senators, their presidential electors for the president and vice-president).

The Supreme Court has, on a few occasions, acknowledged (while sounding somewhat embarrassed) this divergence of long-standing practice from the Framers’ original conception.  See McPherson v. Blacker, 146 U.S. 1, 36 (1892) (“Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the chief executive, but experience soon demonstrated that . . . they were so chosen simply to register the will of the appointing power in respect of a particular candidate. In relation, then, to the independence of the electors, the original expectation may be said to have been frustrated”); Williams v. Rhodes, 393 U.S. 23, 43–44 (1968) (Harlan, J., concurring in the result) (“The Electoral College was created to permit the most knowledgeable members of the community to choose the executive of a nation whose continental dimensions were thought to preclude an informed choice by the citizenry at large.”); Ray, 343 U.S. at 232 (Jackson, J., dissenting) (“No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices. Certainly under that plan no state law could control the elector in performance of his federal duty, any more than it could a United States Senator who also is chosen by, and represents, the State.”)

How, then, did we get from there to here?  It took a constitutional amendment (XXVII) to remove State legislators from their position as Senatorial “electors”; but somehow the role of the Electoral College has dramatically changed without any modifications in the relevant constitutional provisions (since 1804, the date of adoption for Amendment 12). What happened?

What happened was that each of the States—who have the responsibility for appointing presidential electors (see note above)—requires presidential electors to pledge, prior to their appointment, to cast their ballots precisely as they are told to do by the State government, and in all States (except for Nebraska and Maine, which have proportional schemes for allocating their electoral votes) the governing rule is that the electors will vote for the candidate who received a plurality of the votes cast in the State.***

***If you’re interested, the National Ass’n of Secretaries of State has put together an admirable compendium of each State’s laws regarding presidential electors here.

The Supreme Court upheld this practice against constitutional attack in Ray v. Blair, 343 U.S. 214 (1952), holding that the pledge requirement was “an exercise of the state’s right to appoint electors in such manner, subject to possible constitutional limitations, as it may choose.”

So when Michael Baca was appointed as one of Colorado’s nine presidential electors***, he (along with the other eight electors) took, as required by Colorado law, an oath affirming that he would cast his electoral ballot for the candidate who received the highest number of votes in the State on November 8—Hillary Clinton. Despite having taken the oath, Mr. Baca crossed out “Hillary Clinton” from his presidential ballot and wrote in “John Kasich.” (He was, reportedly, concerned that Russian interference in the election on Clinton’s behalf [!] might have influenced the electoral results).

*** Baca was appointed as an elector because he had been placed on the Colorado Democratic Party’s list of proposed electors back in April, 2016.  Colorado, like most states, requires all candidates appearing on the presidential ballot to submit a slate of presidential electors; after the election, the Colorado Secretary of State certifies the vote totals and appoints the members of the winning candidate’s slate to serve as Colorado’s presidential electors. Because Clinton carried the State, Baca (and the others on the Democratic slate) received his appointment.

Colorado’s Secretary of State then removed Mr. Baca as an elector, refused to count his vote, and appointed a substitute elector who cast her ballot for Ms. Clinton.

Baca filed suit, arguing that his removal, and the nullification of his vote, violated his constitutional rights under the Twelfth Amendment. The district court dismissed his claim, on several alternate grounds: that the claim was moot, that Baca lacked standing to press the claim, and that there was in any event no viable constitutional claim to pursue.

Last week, the 10th Circuit reversed on all fronts. After a long and complex discussion of the standing and mootness questions (through page 56 of the opinion), the court proceeded to resolve “whether Colorado may constitutionally remove a presidential elector during voting and nullify his vote based on the elector’s failure to comply with state law dictating the candidate for whom the elector must vote.”

The answer: No, it may not.

To be sure, “the state legislature’s power to select the manner for appointing
electors is plenary.” Bush, 531 U.S. at 104; see also McPherson, 146 U.S. at 35 (“In
short, the appointment and mode of appointment of electors belong exclusively to the
states under the constitution of the United States.”). The states therefore have broad
discretion in the process by which they select their presidential electors. But the
question here is not over Colorado’s power to appoint electors; it is whether this
appointment power includes the ability to remove electors and cancel already-cast
votes after the electors are appointed and begin performing their federal function.

According to Mr. Baca, the states have no right to remove appointed electors
or strike their votes because the Constitution provides no role for the states after
appointment. Based on a close reading of the text of the Twelfth Amendment, we
agree …  (p. 79-80, italics added)

This seems correct to me, as a constitutional matter.  The idea is pretty straightforward:  Colorado can appoint electors pretty much any way it wants to.  But once the electors have been appointed, they are officers of the federal government performing a federal function, and States do not have the constitutional authority to interfere with the way that federal officers perform their federal functions. Colorado can require each elector to take an oath of fidelity to Colorado’s rules regarding the exercise of those federal functions as a pre-condition of appointing someone to the job; but it cannot enforce that oath via removal and nullification.

So where does this leave us? This decision does not, of course, establish “the law of the land.” It could be overturned, either by the 10th Circuit en banc or the Supreme Court (which almost certainly will be called upon, at some point, to rule on the question).

And I suppose that even if it were the law of the land, it might not have much impact on our presidential elections.  After all, the political parties will still be able to get “their people” appointed, and how many electors, having been nominated as an elector by one of the political parties, will want to vote against their party’s candidate in the final balloting (even if they have the constitutional right to do so)?

But let us imagine the unimaginable—a useful thought experiment, especially, I would think, for adherents to the “original meaning” of the Constitution.  What if we actually ran our presidential elections as the Framers intended—i.e., what if we committed the decision of who would become our president to this group of 538 people, each of whom had been elected by voters in one of the States for the sole purpose of choosing, freely, the candidate they believed best suited to the office?

I take it that a strict originalist would say: that was what the Framers intended, and the Constitution has not been modified so as to alter that structure, so … Yes, that is precisely what the Constitution requires.

One thing is pretty clear: that would be a very, very different presidential election process than the one we have had for the last 200 years. Which is not to say it wouldn’t be an improvement over our current practice, which has delivered unto us an individual manifestly unfit to occupy the office. Perhaps the choice of president, as Justice Harlan put it, really does “preclude an informed choice by the citizenry at large,” and that a small group exercising the power by proxy would produce better results. There is something intriguing about the notion of you and I voting not for president, but for people to whom we delegate that choice, people we trust to exercise their discretion and their judgment wisely, and there would, presumably, be campaigns mounted not by presidential candidates, but by electors: “Trust me to choose your president.” The problem of elector corruption, on the other hand, could prove insurmountable; with a group that small, the price of buying the presidency would be relatively manageable and possibly uncontrollable.  It would be a strange world indeed.