Fed Court: Presidential electors can vote as they wish

Politics & Elections
121

Under the rationale of this decision (and I agree with the good outcome it produces) what would stop a state from conditioning the election of a senator or congressman on his voting for gun control, or against taxes, or for funding Planned Parenthood, or for defunding the police?

Then once the congressperson does not vote as directed, then he or she could be fined or removed from office. Indeed, the vote wouldn’t even count, but the newly appointed congressperson could then vote the “right” way on the contentious issue. IOW, the Court used the states power to control the “manner” of appointment of electors as support, but it has the same power to control the “manner” of elections to Congress. The majority doesn’t mention it at all.

122

Let’s try this piece of reasoning from the Court:

The Electors argue that three simple words stand in for
more explicit language about discretion. Article II, §1 first
names the members of the Electoral College: “electors.” The
Twelfth Amendment then says that electors shall “vote”
and that they shall do so by “ballot.” The “plain meaning”
of those terms, the Electors say, requires electors to have
“freedom of choice.” Brief for Petitioners 29, 31. If the
States could control their votes, “the electors would not be
‘Electors,’ and their ‘vote by Ballot’ would not be a ‘vote.’”
Id., at 31.
But those 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.” In those cases, the choice is in
someone else’s hands, but the words still apply because they
can signify a mechanical act. Or similarly, suppose in a sys-
tem allowing proxy voting (a common practice in the founding era), the proxy acts on clear instructions from the principal, with no freedom of choice. Still, we might well say
that he cast a “ballot” or “voted,” though the preference registered was not his own. For that matter, some elections
give the voter no real choice because there is only one name
on a ballot (consider an old Soviet election, or even a downballot race in this country). Yet if the person in the voting
booth goes through the motions, we consider him to have
voted. The point of all these examples is to show that although voting and discretion are usually combined, voting is
still voting when discretion departs. Maybe most telling,
switch from hypotheticals to the members of the Electoral
College. For centuries now, as we’ll later show, almost all
have considered themselves bound to vote for their party’s
(and the state voters’) preference. See infra, at 13–17. Yet
there is no better description for what they do in the Electoral College than “vote” by “ballot.” And all these years
later, everyone still calls them “electors”—and not wrongly,
because even though they vote without discretion, they do
indeed elect a President.

That seems astounding to me as it seems that we could tell women to vote exactly as her spouse does and not violate the 19th Amendment, because after all, voting doesn’t necessarily mean free choice. Or less protected class: a state could mandate that union members vote as their bosses direct, or that all state employees vote for the governor in his reelection campaign.

123

I mean, that wasn’t at all what this case was about. So you can make up as many “but whatabouts” as you want until the cows come home. Are you going to do that about every SC decision?

124

Can you distinguish it, or are you going to be dismissive?

125

It’s pretty clear that electors are chosen based on specific thing, that they’re going to vote for a specific person. That’s their one and only job. The state’s going “We’ve decided we want this person to be president. Go elect that person because our system is so fucked up there has to be an intermediary.” If you can’t see the difference between that and telling a private citizen how to vote in every election, then yeah, I’m just going to be dismissive.

126

Of course there is a difference between the two functions. Nobody doubts that. But this conclusion begs the question. You cannot use “manner” in one section and say it means something different in another just to reach a predetermined conclusion.

Saying that “vote” means something different for an elector than it does to a citizen again is begging the question that the parties asked the Court to decide. Further, the reasoning is all wrong. Yes, if I choose to vote a certain way because my wife told me to, that is still a free choice. I could choose to disregard what she tells me. The same way with the union boss or the pastor. Likewise, I could refuse to hold someone’s proxy vote.

G.W. Bush can say “Read my lips, no new taxes!” and then once in office, support new taxes. Or a senator could change his mind on an issue. Nobody would seriously suggest that there could be some automatic recall effort for those. Why is it different if an elector does it?

What this decision does is mandate that an elector votes the why the state tell him or her to vote. And if the answer is “well, we just tell the elector how to vote” then that should almost be a textbook example of question begging.

127

And the ruling gives the States the right to enforce the popular vote casting by electors. You know, if the States want to. But they don’t have to.

128

The Electoral College (and the whole system of “electoral votes”) should really be abolished. That said, it’s pretty clear that the Constitution was originally set up to NOT provide for democratic election of the President of the United States. (After all, if we let “the masses” just pick the President, they might elect some totally unqualified populist demagogue, even someone with dubious loyalty to the Republic itself and murky and possibly corrupt ties to a hostile foreign power…You know, I really miss “smacky” the old forehead-slapping smiley.) Anyway.

Letting 538 random people (Quick: Name one of your state’s electors from the 2016 election. No Googling!*) be in charge of picking the POTUS would certainly not be acceptable. Furthermore, it’s not even 538 people in a “college”, like the College of Cardinals, who meet together to deliberate in solemn conclave and decide what Natural Born Citizen of this Great Nation would be best suited to be our next President. It’s 51 separate committees, with between three and fifty-five members apiece, meeting separately to choose a President. It’s a silly, Rube Goldberg system. Pretending like “It’s OK, because the ‘electors’ can be legally compelled to accept the Will of the People!” is daft.
*Although I suppose some of y’all may actually be able to do that. I certainly can’t.

For one thing–I admit I haven’t read the SCOTUS decision(s)–was this a victory for “democracy”, or for “states’ rights”? Granted that it’s now universal that the winner of a state’s “popular vote” (or, in a couple of states, the winner of the “popular vote” in a particular Congressional district) gets the state’s (or district’s) “electoral votes”: Could a state legislature, which happens to be controlled by one party Cough! the Republican Party but where the Presidential candidate of the other party wins the “popular vote” in that state in November, just arbitrarily pass a law “instructing” its “electors” that they must vote for the legislature’s preferred candidate?

So, again, the Electoral College should really be abolished.

129

I support the Electoral College with all it’s warts. But in this day and age, there is no need for electors. Sure, they served a purpose in the days before mass communication when someone HAD to travel from the states to the capital to say, yeah, our votes go for candidate X.

But these modern times of near instant results the states just need to decide whether their votes go to winner-take-all or divide them among the candidates by percentage of votes received. Just completely eliminate the whole faithless elector argument.

130

Yes, but the problem is the constitution explicitly mandates there will be electors, people who vote, so electors there are even if the laws just validated firmly place them in a ritual/ceremonial role of “republic theater”.

131

True, but then so is the electoral college. So if we’re overturning a provision I’ll stand by my choice.

132

I have to wonder if it would have been unanimous if Scalia were still alive.

133

That was actually his dad, G.H.W. Bush, during the 1988 campaign.

134

I would argue that the Constitution treats members of Congress and presidential electors, and each one’s relationship with state legislatures, very differently.

*Members of Congress are “chosen every second Year by the People of the several States” (Art. I, Sec. 2, par. 1) or “elected by the people thereof, for six years” (17th Amend.) while for presidential electors “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” (Art. II, Sec. 1, par. 2).

*While electors are appointed in whatever manner each legislature chooses as cited above, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Art. I, Sec. 4, par. 1.

I would argue that the very language of states controlling the “manner of holding elections” for members of Congress is more circumscribed than the language of appointing presidential electors in such manner as each legislature directs. That “such manner” sounds like a “whatever manner” to my ears. :slightly_smiling_face:

Moreover, the time-place-and-manner power for congressional elections is shared with Congress while the manner of choosing electors is entirely up to the various state legislatures.

*Lastly, there are age, citizenship, and residency requirements for members of Congress. (Art. I, Sec. 2, par. 2 & Sec. 3, par. 3) but absolutely no requirements for presidential electors beyond that they not be members of Congress or hold federal office (Art. II, Sec. 1, par. 1).

I would argue from these points that the Constitution intends presidential electors to be creatures of the states while members of Congress are not. Even when the legislatures chose Senators, the power to regulate the manner of holding their election was shared between the states and Congress while the manner of appointing presidential electors wasn’t. And the fact that no qualification of age, citizenship, or residency was placed on electors but was placed on Representatives, and more tellingly on Senators even when they were chosen by the legislatures, emphasizes that the state legislatures could choose whoever they wished as presidential electors but not members of Congress.

Let’s boil it down to an example relevant to the proposition that regulating faithless electors is constitutionally the same as a legislature dictating to a member of Congress. If a state legislature made posting a bond a condition of being on the ballot to be a member of Congress, with said bond forfeit at the legislature’s discretion, either that’s not a regulation of the time, place and manner of holding elections or it is but Congress can supersede it because the time-place-and-manner power is shared between the states and Congress. Whereas if a state legislature made posting a bond a condition of being appointed a presidential elector or being on the ballot as an elector, with said bond forfeit at the legislature’s discretion, nothing in the spartan and sweeping language of Art. II, Sec. 1, par. 2 says the legislature can’t.