Supreme Court Unanimously Rules that States May Require Presidential Electors to be Faithful

On July 6, 2020, the U.S. Supreme Court unanimously ruled that states have the power to require presidential electors to vote for their party’s candidate for President.  All 9 justices agreed with the result (with 8 justices agreeing to the majority opinion). 

  • Supreme Court decision in Chiafalo v. Washington state
  • Washington Post article entitled "Supreme Court says a state may require presidential electors to support its popular-vote winner"
  • The Hill article entitled "Supreme Court rules states can remove faithless electors"
  • New York Times article entitled "States May Curb Faithless Electors, Supreme Court Rules"
  • Roll Call article entitled "Supreme Court lets states keep faithless elector laws"
  • Politico article entitled "States can punish faithless' electors, Supreme Court rules"
  • Scotus Blog article by Amy Howe entitled "Court upholds faithless elector law"

The National Popular Vote law was not the subject of these cases, and the decision does not affect the operation of the National Popular Vote law.  Both the current system and the National Popular Vote system rely on political parties to vet and select presidential electors who will faithfully vote for the party's presidential nominee.  The Supreme Court's decision allows states to pass laws requiring presidential electors to faithfully cast their votes.  In 2011, the National Popular Vote organization endorsed the “Uniform Faithful Presidential Electors Act” written by the Uniform Law Commission in 2010.  The Supreme Court decision makes clear that the Uniform Law Commission's proposed law is constitutional.   

The Supreme Court decision upheld the Washington State Supreme Court in the Chiafalo case, and reversed the ruling of the 10th Circuit Court of Appeals in Denver in the Baca case.

The Court strongly reaffirmed the power of the states over their electoral votes.

Justice Kagan wrote an opinion joined by 8 justices (including Justice Gorsuch). This opinion relied heavily of Article II, section 1, and included the following points: 

  • "Article II, section 1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint. As [the Constitution says], each State may appoint electors 'in such Manner as the Legislature thereof may direct.' ... This Court has described that clause as 'conveying the broadest power of determination' over who becomes an elector."  [Emphasis added]
  • "The Constitution is bare-bones about electors. Article II includes only the instruction to each State to appoint, in whatever way it likes, [its presidential electors]. The Twelfth Amendment then tells electors to meet in their States, to vote for President and Vice President separately, and to transmit lists of all their votes to the President of the United States Senate for counting. ... That is all."  [Emphasis added]
  • "Article II and the Twelfth Amendment give States broad power over electors." [Emphasis added]

Justice Thomas, in a concurring opinion, agreed with the outcome, but reached that conclusion based on the 10th Amendment, instead of Article II, section 1.  Justice Gorsuch joined part II of Justice Thomas's concurring opinion, which included the following points:

  • "When the Constitution is silent, authority resides with the States or the people. This allocation of power is both embodied in the structure of our Constitution and expressly required by the Tenth Amendment. ... Nothing in the Constitution prevents States from requiring Presidential electors to vote for the candidate chosen by the people."  [Emphasis added]
  • "Of course, the powers reserved to the States concerning Presidential electors cannot 'be exercised in such a way as to violate express constitutional commands' [Williams v. Rhodes, 1968]. That is, powers related to electors reside with States to the extent that the Constitution does not remove or restrict that power. Thus, to invalidate a state law, there must be 'something in the Federal Constitution that deprives the [States of] the power to enact such a measure.'”  [Emphasis added]

On May 13, 2020, the U.S. Supreme Court heard arguments concerning the constitutionality of laws in 32 states and DC that purport to require presidential electors to vote for their party’s presidential nominee.   

In one of the two conflicting lower-case decisions, the Washington State Supreme Court upheld the state's law requiring that presidential electors be faithful.  The Washington State Supreme Court wrote (on page 15 of their decision in Chiafalo vs. State of Washington), "[The U.S. Supreme Court's 1952 decision in Ray v. Blair] supports the State's position that nothing in the plain language of either constitutional provision prohibits a state from imposing certain conditions on electors as a part of the state's appointment powers, including requiring electors to pledge their votes."  See State of Washington's brief.     Also, see the brief submitted by South Dakota, 44 other states, and the District of Columbia supporting the power of the states to require presidential electors to be faithful.   The brief submitted by the Campaign Legal Center has a number of novel arguments.   For all briefs in Chiafalo vs. State of Washington, go to Supreme Court web site and search for the case name or docket number 19-465. For background, see Washington Post.  Also, see SCOTUS blog

In the other recent lower-court case (which was overturned by the U.S. Supreme Court), the U.S. Court of Appeals for the 10th Circuit in Denver on August 20, 2019 ruled, “states do not have the constitutional authority to interfere with presidential electors who exercise their constitutional right to vote for the President and Vice President candidates of their choice" (see page 93 of decision in Baca v. Colorado Department of State).   The 10th Circuit decision resulted from a lawsuit filed after three Democratic presidential electors from Colorado refused to vote for Hillary Clinton when the Electoral College met on December 19, 2016.  The Colorado Department of State removed the three electors as part of its effort to enforce a Colorado law requiring presidential electors to vote for their party’s presidential candidate. As the 10th Circuit itself acknowledged on page 67 of its decision, “The Supreme Court, however, has considered a closely analogous question -- whether a primary candidate for party elector can be required to pledge to support the party’s candidate.” In that case in 1952, the Supreme Court ruled in Ray v. Blair that state political parties could require presidential electors to pledge to vote for the party's nominees before being certified as electors. Professor Larry Lessig and the group Equal Citizens support the 10th Circuit decision. Click here for Lessig's opening brief supporting the presidential electors who didn't vote for their party's nominees.  For all briefs in Baca v. Colorado Department of State, go to Supreme Court web site and search for the case name or docket number 19-518.

Eighteen states do not have laws purporting to tell presidential electors how to vote.  Moreover, laws that purport to require presidential electors to vote a certain way are of relatively recent vintage (most since the 1960s) in the 32 states and DC that have such laws. See chart prepared by Prof. Lessig of existing states laws and when they were enacted.  See map by FairVote. 

The National Popular Vote Compact would operate in a manner identical to the system that has been used for over 200 years in the 18 states that do not have laws requiring presidential electors to vote a certain way.  In these 18 states (which currently use the state-by-state winner-take-all method of awarding electoral votes), the presidential electors are nominated (in various ways -- typically by a party conventions at the district or state level) by the political party whose presidential candidate receives the most popular votes inside the state. The National Popular Vote Compact would operate in the same way, except the presidential electors would be the persons nominated by the political party whose presidential candidate receives the most popular votes in all 50 states and the District of Columbia. 

Both the current system and the National Popular Vote system rely on political parties to vet and select their presidential electors.  This system has worked reliably over the years in the 18 states that do not purport to tell their presidential electors how to vote.  And, it has worked reliably in the 32 states before they adopted laws (most since the 1960s) that purport to tell presidential electors how to vote.  After 23,529 electoral votes in 58 presidential elections between 1789 and 2016, the vote of Samuel Miles in 1796 was the only case when an electoral vote was cast for President in an unfaithful way by a presidential elector who might have thought, at the time he voted, that his vote might affect the outcome. See section 2.12 of Every Vote Equal book at www.Every-Vote-Equal.com    

During the same period (1789 to 2016), there have been a number of "grand-standing" presidential electors -- that is, electors who have cast a deviant vote for President knowing, at the time they voted, that their vote would not affect the outcome of the election in the Electoral College. Prior to 2016, there had never been more than one grand-standing presidential elector in any given election.  Having multiple faithless presidential electors in one year (2016) was unusual.  All of the faithless electors in 2016 were well aware, at the time they voted, that their vote would not affect the outcome in the Electoral College because everyone knew that Donald Trump had won 36 more electoral votes than required for election.  

Given the amount of publicity received by the grandstanding faithless electors in 2016, each political party can be expected to be extremely careful in 2020 about vetting the people they nominate for the position of presidential elector.  If the political parties do their job of vetting their nominees for the position of presidential electors, faithless electors cannot have any effect on the outcome -- under either the current system or the National Popular Vote compact.  

The increased attention on faithless presidential electors will probably cause additional states to enact either the “Uniform Faithful Presidential Electors Act” written by the Uniform Law Commission or Pennsylvania’s law (enacted in the 1930s) in which the presidential candidate directly nominates the people to serve as his or her presidential electors (25 P.S. §2878).