Case

In the United States, the Electoral College determines who wins the presidency. The system works by assigning electors to the number of House and Senate seats and adding representation for the District of Columbia. To win, a nominee must receive two-hundred and seventy delegates. Most states, including Washington, are winner-take-all states, which means that all of the electoral votes go to whomever wins the state’s popular vote count. The two major political parties, Republican and Democrat, usually pick the electors for each state, leading to Democratic electors voting when a Democrat wins and vice versa for Republican electors and candidates. Many have heavily criticized this system, but overall, little drama has resulted, with most electors following the protocols set out for them. 

The 2016 election was different. There was dissatisfaction on both sides towards party nominees. Peter Bret Chiafolo, an elector for the Washington State Democratic Party, voted for Colin Powell instead of Washington State’s popular vote winner, Democratic nominee Hillary Rodham Clinton. Washington law requires electors to pledge to vote for their party’s nominee, and not doing so results in a thousand-dollar fine, which Chiafolo was forced to pay. Two other Washington state electors voted for Colin Powell, and one elector voted for Faith Spotted Eagle, a Native American leader. Similarly, an elector in Colorado voted for former Ohio Governor, John Kasich instead of Hillary Clinton. His ballot was not counted. 

Democratic electors tried to convince Republican electors, many of whom were originally “Never Trumpers” to stop Trump and instead vote for a traditional conservative. When information came to light about Russian meddling in the election, Democratic electors asked for intelligence briefings on the matter but were not given access. The group came to be known as the Hamilton Electors. Alexander Hamilton wrote in the Federalist Papers about an electors’ free choice. While this attempt was unsuccessful, the 2016 election had more “faithless” electors than ever, representing five million voters. 

The lawyers representing Chiafolo argued that states regulating electors could lead to set qualifications for candidates. For instance, only allowing state electors to vote for a candidate that has released their tax returns, a relevant example, as Donald Trump did not release his tax returns during the 2016 election. They also argued that since the Constitution is not explicit on how an elector has to act, they have the freedom to vote as they want. Those representing Washington state claimed that a ruling in favor of elector freedom could lead to more and more rogue electors, which could impact the election outcome. The Court was asked to determine if state laws mandating electors voting violated the First Amendment. 

Decision

In a unanimous decision, written by Justice Elena Kagan, the Court determined that state laws that make sure an elector votes as they have pledged to are constitutional. She wrote that a state may punish an elector for voting outside a state’s popular vote. Article II Section I of the Constitution gives states “the broadest power of determination” in who becomes an elector. In addition, the Twelfth Amendment, which speaks of the Electoral College, maintains the state’s right to appoint electors. Kagan notes that it has been long established that electors vote as their state’s population votes. 

Justice Clarence Thomas wrote a concurrence, arguing that instead of using Article II, he would have used rationale from the Tenth Amendment, which gives states and the people of each state all powers not given to the federal government. Justice Neil Gorsuch joined Thomas’ concurrence. 

Impact

The Supreme Court made the Chiafolo decision in the middle of the 2020 election cycle between incumbent Donald Trump and Democratic nominee Joe Biden. Since 2016, the debate around if the government should abolish the electoral college has become more mainstream. There is concern around the popular vote winner and the electoral college winner becoming different people, more and more often. Many scholars were not surprised by the decision, thinking that the Court would not want to risk what could come of establishing no punishment for rogue electors. Some were surprised that the decision was unanimous, with conservative and liberal justices broadly agreeing. However, “faithless” electors are usually symbolic and have never had a significant impact on an election. Less than 1% of electors have been “faithless” in American history.

    Learn More

    1. Gerstein, Josh, and Kyle Cheney. “States Can Punish ‘Faithless’ Electors, Supreme Court Rules.” POLITICO, 6 July 2020, 10:17, www.politico.com/news/2020/07/06/supreme-court-trump-taxes-mazars-349728.
    2. “Chiafalo v. Washington.” Oyez, www.oyez.org/cases/2019/19-465.
    3. de Vogue, Ariane, and Chandelis Duster. “Supreme Court says states can punish Electoral College voters.” CNN politics, 6 July 2020, 12:38, https://www.cnn.com/2020/07/06/politics/faithless-electors-supreme-court/index.html.

    Think Further

    1. Why do you think the popular vote winner and the electoral college winner have differed more often in recent history? 
    2. Do you find it important that the Court ruled unanimously? What would have been the implications if the decision was a tight 5-4 ruling instead? 
    3. Do you more agree with Justice Kagan’s reasoning, Justice Thomas’ reasoning, or neither? 

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