The NCSL Blog

07

By Lisa Soronen

In Chiafalo v. Washington, the Supreme Court upheld Washington state’s law fining “faithless” electors that do not vote for the candidate that won the state’s popular vote.

Colorado elector Micheal Baca, second from left, voted for John Kasich in 2016, instead of Hilary Clinton, who won the popular vote in Colorado, in Denver on Dec. 19, 2016.Brennan Linsley / AP fileLikewise, the Court reversed the Tenth Circuit’s decision in Baca v. Colorado Dept. of State, which held that removing a “faithless” elector was unconstitutional. Justice Elena Kagan wrote the opinion joined by all the justices save for Clarence Thomas who wrote his own concurrence.

Article II of the U.S. Constitution requires states to appoint electors. The Twelfth Amendment says that electors vote for president and vice president. 

A majority of states have enacted “pledge laws” requiring electors take a formal oath or pledge to cast their ballot for their party’s candidates for president and vice president. The Supreme Court ruled that pledge laws were constitutional in Ray v. Blair (1952).

Kagan, writing for the majority extended this ruling to allow states to punish faithless electors. The Washington statute backs up its pledge with a $1,000 fine to prevent faithless electors. Kagan noted that in Ray the Court stated “’neither the language of Art[icle] II . . . nor that of the Twelfth Amendment’ prohibits a State from appointing electors committed to vote for a party’s candidate.” Based on this determination, Kagan concluded that nothing in Article II forbids a state from taking away an elector’s voting discretion, and it grants the states the power to do so by allowing them to appoint electors “in whatever way it likes.”

Kagan also rejected the argument that because the Twelfth Amendment uses the words “vote” and “ballot” electors must be allowed to exercise their own choice. Kagan pointed out that these words “need not always connote independent choice. Suppose a person always votes in the way his spouse, or pastor, or union tells him to. We might question his judgment, but we would have no problem saying that he ‘votes’ or fills in a ‘ballot.’”

The majority opinion also found historical support for limiting elector’s ability to make their own choices. “Electors have only rarely exercised discretion in casting their ballots for president. From the first, states sent them to the Electoral College—as today Washington does—to vote for preselected candidates, rather than to use their own judgment.” Faithless electors have been the anomaly, according to the Court. Since the founding, electors have cast only 180 faithless votes for either president or vice president—out of over 23,000.

Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.