An End of Faithless Electors
By: Thaddeus R. Winker
Tags: Supreme Court, Faithless Electors, Electoral College

An End of Faithless Electors

Originally posted on July 10, 2020

On Monday, July 6, 2020, the United States Supreme Court released the unanimous opinion on Chiafalo v Washington and the companion case Colorado Department of State v. Baca. These were two of the most important cases this term, and the decision will have far-reaching and long-term implications.

The cases centered on a group of people chosen as Democratic Electors for the states of Washington and Colorado and their decision to not vote for Hillary Clinton in the 2016 election. Justice Elena Kagan delivered the unanimous opinion for the Court. Justice Clarence Thomas filed a concurring opinion with Justice Neil Gorsuch.

I had mixed feelings on these cases from the beginning. Perhaps the only reason I ever favored the Faithless Electors was because of my independent and chaotic-neutral streaks. In the end, the Supreme Court ruled in favor of the States: A state may enforce (punitively) an elector’s pledge to support their party’s nominee — and the state voters’ choice — for president in the Electoral College.

I read through Justice Kagan’s opinion and very much appreciated the time she spent going through the history of the Electoral College. You can tell she was a law professor before joining the Court. The entire opinion is an excellent course in history and civics. She lays out the history of the Electoral College in a very readable way and explains how the Justices arrived at their unanimous decision. The entire thing is educational and interesting.

This decision explicitly grants the States the power to appoint and legislate the electoral votes they send to Congress. The Electoral College was the most controversial and difficult part of the Constitution, and there is hardly anything concrete in the text. What is there, grants broad powers to the individual States to handle the selection of Electors and how they should behave. I highly recommend reading both Justice Kagan’s and Justice Thomas’ opinions.

One of the long-term implications of this decision relates to the National Popular Vote Interstate Compact (NPVIC). The problems with the NPVIC are numerous, and many observers already consider the entire plan an unconstitutional mess. But the opinion on Monday is yet another nail in the coffin of this grand plan to destroy the Republic.

Chiafalo v. Washington makes clear that the Electoral College must vote as ordered by the State (or suffer consequences) and vote according to the will of the people they represent (the people of the State). Any attempt to legislate away that function will run afoul of the Constitutional role of the Electoral College.

On Thursday, July 9, the Court ended their term with another far-reaching and important opinion — this one from Justice Neil Gorsuch: McGirt v. Oklahoma. In his opinion, Justice Gorsuch once again shows his textualist bona fides and chastises the Government for trying to skip out of legislating uncomfortable situations.

We can sum up the entire case and opinion with this quote from the decision: “Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.”