(Bloomberg Opinion) -- A federal appeals court has held that members of the Electoral College have a constitutional right to vote for a different presidential candidate than the one they swore to support — and whom the voting public in their states actually chose.
It’s a terrible holding.
Inventing a right to be a faithless elector invites chaos, elevates formalism over democracy, and shows how indefensible originalism is when applied to evolving norms of democracy.
The issue will probably have to go to the U.S. Supreme Court. We can only hope the justices apply common sense and take into account that the point of modern presidential elections is to elect the people’s preferred candidate.
The case decided last week by the U.S. Court of Appeals for the 10th Circuit arose in Colorado in the last presidential election.
Like a lot of states, Colorado has a law that says its presidential electors who are chosen for the Electoral College must vote for the candidate who wins the most votes in the state. Colorado went for Hillary Clinton. But one of the electors, a man named Michael Baca, refused to cast his vote for her, instead writing the name of Republican John Kasich on his ballot.
The Colorado secretary of state fired Baca and replaced him with an elector who would vote according to the state law. Baca sued, alleging that Colorado had violated his constitutional right as an elector to vote for anyone he wanted.
The U.S. Constitution says, in Article II, that “each state shall appoint” electors “in such manner as the Legislature thereof may direct.” And under the 12th Amendment, those electors convene in their states to vote for president and vice president. (It’s those electors we are talking about when we refer to the “Electoral College,” although the phrase itself never appears in the Constitution and the electors from across the country don’t get together in a single place as the name “college” might seem to imply.)
Given that the Constitution expressly confers on the states the authority to determine the manner of picking electors, you would think it was obvious that the states could choose to enforce the people’s democratic will by requiring electors to vote the way the public has directed them.
After all, if electors could vote however they wanted, then the voting public might not get to choose the president. Instead, the electors would do the deciding.
In fact, in the 1952 case of Ray v. Blair, the Supreme Court explicitly rejected “the argument that the Twelfth Amendment demands absolute freedom for the elector to vote his own choice, uninhibited by a pledge.” It said that “the suggestion that in the early elections candidates for electors — contemporaries of the Founders — would have hesitated, because of constitutional limitations, to pledge themselves to support party nominees in the event of their selection as electors is impossible to accept.”
Yet the appeals court said that this holding didn’t matter, because the Supreme Court left open the possibility that the electors’ pledges might not be enforceable in court — and because Baca was fired only after he repudiated his pledge.
To be sure, at the time the Constitution was written, some of the designers may have imagined giving discretion to the electors. Even this is not clear. After the founding, most states relied on their state legislatures to pick the electors, and there is reason to think the legislators wanted the electors to do as they were told.
But none of that should matter today, when we understand that the point of a presidential election is for the candidate who wins each state to get that state’s electoral votes. The state laws that require the electors to vote in accordance with the voting public’s will are the basic legal expression of our modern, democratic conception of the presidential race.
Unfortunately, the 10th Circuit got caught up in the theory that the “text” of the Constitution should control the case. And it reasoned that nothing written in the constitutional formally allows the states to remove an elector who violated his or her promise to vote for the presidential candidate chosen by the state’s citizens. Then the court went further, arguing that the word “elector” implies some choice.
This was empty formalism of the worst kind. The reason the text of the Constitution doesn’t say that states can’t bind the electors is that it already says the states can prescribe the manner of choosing the electors. Indeed, if you really wanted to rely on the constitutional text alone, then the provision giving states that authority should end the discussion.
According to the court, the state’s undoubted right to decide how to choose electors doesn’t extend to firing electors who break the state law under which they were chosen.
A simple thought experiment shows that this is mistaken, even as a matter of text. Suppose an elector broke the Constitution’s rules for how to choose a candidate, for example by voting for a president and vice president from the same state, which the 12th Amendment bars. Obviously that elector’s vote would have to be excluded, and another elector would have to be named in his or her place. The same principle should apply to an elector who violates state law.
The court also seemed to be influenced by some originalist idea that the framers expected the electors to be free to exercise discretion. Even if this were so, it wouldn’t matter. Our democracy has evolved since 1787 — and thank God for it. To quote Justice Oliver Wendell Holmes, the Constitution must be interpreted “in the light of our whole experience, and not merely in that of what was said a hundred years ago” — when some framers feared that the people lacked the moral capacity to elect the president without the intermediation of elected representatives.
The fact that a court has said that faithless electors have a right to break faith with the voters is an obvious invitation to future electors to break faith. If more than a handful did so, we wouldn’t know who was president after the election. Worse, the presidency wouldn’t be decided by the voters, but by mostly unknown electors, who are unknown precisely because no one seriously thought before that their job was to second-guess the voters and pick the president.
In order to restore order, the Supreme Court will have to weigh in and hold that the 10th Circuit got it wrong. The activists who brought the case on Baca’s behalf have said that they wanted to avoid chaos by having the courts address the issue before it comes up with a presidential election on the line. But what if the Supreme Court doesn’t weigh in, or doesn’t do so in time? Then the 10th Circuit decision will remain as a source of potential chaos.
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Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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