Imagine that when the votes are finally counted in the 2020 elections, former Vice President Joe Biden puts a narrow victory in the Electoral College. Then imagine that the nation is shocked weeks later to hear that President Donald Trump will get a second term because some previously unknown members of the Electoral College refused to vote for Biden.
A few cases that the Supreme Court will deal with next week, Chiafalo v. Washington and Department of Colorado v. Baca, will decide whether this scenario is even possible. In both cases they are “treacherous voters” – members of the Electoral College who go rogue and refuse to vote for the candidate who won their state.
Washington and Colorado both have safeguards designed to prevent treacherous voters. In Chiafalo, three voters in 2016 voted for former Republican Secretary of State Colin Powell as part of a quixotic effort to put someone other than Trump in the White House. The idea was that if they supported a relatively moderate Republican, perhaps enough other members of the Electoral College would join them and put that person in the White House instead of Trump. These unbelieving voters were fined $ 1,000 each.
Meanwhile in Baca, a voter, also in 2016, tried to vote for then-Governor of Ohio John Kasich, a Republican. But before this vote could be cast, Colorado removed the voter and replaced it with someone dutifully voting for Democratic nominee (and Colorado winner) Hillary Clinton.
The legal dispute in both cases is based on a limited distinction between a state’s power to nominate presidential voters and its power to compel those voters to behave in a certain way after their nomination. In Ray to Blair (1952), the Supreme Court ruled that, before being appointed as a voter, he may have to promise to support his party’s candidate. But Ray the question of what happens if a voter violates this promise after joining the Electoral College remained unanswered.
Ray ruled that “even if such promises of candidates to the electoral college are not legally enforceable … it would not result in the requirement of a lien being” unconstitutional, an interest in whether an electorate promises to support a particular candidate , explicitly avoided is “not legally enforceable”.
That question now lies with the Supreme Court. And while there are profound practical reasons why the country should not tolerate loyal voters, the legal issues raised by the Chiafalo and Baca cases are loaded and have no clear answers.
Does the power to nominate a voter include the power to remove or discipline that voter?
All 50 states elect members of the Electoral College through a popular election. Forty-eight states give all of a state’s electoral votes to the candidate who wins the popular vote in that state. The other two states, Maine and Nebraska, give two electoral votes to the winner of the statewide plebiscite and then one electoral vote to the winner of the popular vote in each of the state’s congressional districts.
This standard, that members of the Electoral College will be elected by popular elections, emerged early in American history. By 1832, every state except South Carolina elected voters by nationwide vote. South Carolina survived in the 1860s.
But the constitution does not prescribe popular elections for members of the Electoral College. On the contrary, it states that “every state appoints, in a manner that the legislator can determine, a number of voters, equal to the entire number of senators and representatives to which the state may be entitled in Congress. “If the state legislature agrees, a state may be able to randomly elect members of the Electoral College by throwing darts at a telephone directory.
Because states have virtually unlimited power to decide how to designate voters, they can impose almost any condition on anyone hoping to become a voter until the time of that election. This is why Ray was of the opinion that states can demand that potential voters promise to support a particular candidate before those voters have been formally appointed.
But the voters who wanted to vote for someone other than Clinton in 2016 argue in them letter to the Supreme Court, that the power of a state to control its presidential voters ends when those voters are appointed. Members of the Electoral College, this letter states, are related to federal judges, who are appointed by the President but cannot be removed from office if they make that President dissatisfied. Or they resemble senators, prior to the ratification of the 17th change were elected by state legislators, but could not be removed or sanctioned if they violated the legislator’s wishes after their appointment.
Colorado and Washington, on the other hand, argue that senators and federal judges are exceptions to a wider rule. As Washington argues in brief, “The” standard rule “is that the authority to” name “includes the authority to remove.” Judges cannot be removed by the person who appointed them, because the Constitution explicitly states that federal judges “will perform their function during good behavior“And senators could not be removed by a state legislature because the constitution provides that senators serve”for six years. ‘
But if there is no explicit constitutional language that states that presidential voters should serve for a certain amount of time, states state, the standard rule is that voters can be removed by the same agency that appointed them.
Indeed, there are a large number of Supreme Court cases stating that the power to make an appointment usually includes the power to remove the nominated person. Like the Court in Myers v United States (1926), “The right of removal … is inherent in the right to appoint, unless limited by the Constitution or the Statute.” But most of these cases involve the power of the President to remove their own subordinates. States’ reliance on these cases largely raises the question of whether presidential voters are subordinate to their state’s legislature.
All this goes a long way in saying that a Supreme Court judge who wants to allow infidel voters could draft a perfectly plausible opinion to reach that conclusion, while a judge who wants to ban infidel voters could also issue a plausible opinion with the opposite conclusion.
There are profound practical reasons for resisting disbelievers
Aside from what the text of the Constitution actually requires, the letter of unbelieving voters unites one strong argument that the Framers originally expected members of the Electoral College to exercise independent judgment.
although some Framers supported the idea that people should elect the president directly, there was concern that people would not be able to elect a president, given the practicalities of the time. Since it can take months for information to travel from one part of the nation to another, the reality of communication in 1787 would make any national campaign against the people impossible.
The Framers’ solution was to create an intermediary body, with members appointed within each state in the way that legislators would choose, which would “form a separate and coordinating branch of the United States government.”
Any word from these two paragraphs can be true. But while they are a good reason why presidential voters should make an independent judgment in 1787, they also cut quite a bit against the case to allow this discretion today. It no longer takes months for information about a presidential candidate to travel across the country – often it only takes a few minutes. We no longer need an ‘intermediate body’ to weigh information that is not readily available to the masses.
Alexander Hamilton famously wrote that the electoral college would allow the president to “push through.” men who are most able to analyze the qualities adapted to the stationand acting under conditions conducive to deliberation. “But even if Hamilton is right that the framers imagine men with such status being appointed as members of the Electoral College, it is emphatically not how the Electoral College functions today.
By 2020, the American people expect presidential voters to act like robots and vote uncritically for those who supported their state in the elections. Members of the Electoral College are usually unknown and their name is rarely on a ballot paper. They do not own any of the social capital that Hamilton has attributed to them.
That brings us back to where this piece started. Imagine Democrats learning weeks after election day that Biden’s victory was snatched from them and handed over to Trump by some obscure voter, which hardly any voters have heard of. Would Democrats just raise their hands and say “well, shucks, that’s what the Constitution requires”, or would many of them treat this event as an illegal coup? (The same questions would apply to Republicans if Trump were at the wrong end of voter independence.)
A president’s legitimacy stems from more than just formal constitutional rules, it stems from the sense that the president was elected in a fair and non-arbitrary process. Governments, as the Declaration of Independence proclaims, “their just powers from the consent of the ruler. ‘
There is no good answer as to whether disbelieving voters are allowed, at least as a formal legal issue. But if the judges choose to allow them, they may endorse the chaos.