So today’s SCOTUS decision allows states to punish electors who don’t follow that state’s laws about how they are supposed to vote, including laws saying they must vote for that state’s popular vote winner.
Does this decision also imply that states can require electors to vote for the winner of the national popular vote, as apparently some states do? Or is that a different question altogether?
The National Popular Vote Interstate Compact, which would require the electors to vote for the national winner hasn’t gone into effect yet (and won’t until enough states pass it). If it does, there will most likely be more court cases about it.
Yeah, the NPVIC is clearly an attempt to nullify the EC without actually amending the Constitution (of course, as things presently stand, the EC will be in place until a Republican wins the popular vote and loses the EC. At that point, the EC will be abolished so quick it will make your head spin). There will definitely be legal challenges to it should it get the required number of states to adopt it.
It’s an interesting question. As others have noted, if the national compact goes into effect, there will undoubtedly be legal challenges.
I would think, based on my reading of the result in Chiafalo (I’ve read both the majority opinion, and Clarence Thomas’s concurrence), that mandating electors to follow the national popular vote would be something that the states could do under this decision.
Central to the holding of Justice Kagan’s majority opinion is that Article II of the constitution “gives the States farreaching authority over presidential electors, absent some other constitutional constraint” (p. 9). This, by itself, seems to suggest that, as long as the constitution doesn’t expressly forbid states from doing this, they can do it.
Now, Kagan’s opinion does also spend quite a bit of time talking about historical practice, and the fact that states have, since very early in the life of the republic, basically dictated that electors would follow the will of the people. She notes that “Courts and commentators throughout the 19th century recognized the electors as merely acting on other people’s preferences” (p. 15).
Of course, the preferences in this case were the preferences of the people within each particular state, not the people of the nation as a whole. I’d be interested to see if that difference made any change to the argument Kagan is making here. After all, it’s hard to argue that the original framers of the constitution desired anything like a national popular vote for president. The very existence of the electoral college is evidence that they didn’t.
Still, Kagan’s decision tends to rely more on language than intent. The majority notes that many historians and legal scholars believe that the framers of the constitution intended the electors to exercise their own, individual judgment, but the majority opinion basically dismisses this consideration in favor of a more directly textual analysis.
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I think that Clarence Thomas’s concurrence suggests that he would have no real problem with the
National Popular Vote Interstate Compact. Thomas agrees in the judgment in this case, but not the reasoning. His central position is that the constitution never really addresses in any meaningful way whether or not states have the power to control electors. In particular, he argues that requiring states to put in place a method of choosing electors does not, in itself, give the states power over those electors.
While the majority argues that the constitution gives the states power to control electors, Thomas argues that it doesn’t explicitly grant that power. But because it doesn’t say either way, Thomas argues that the decision should therefore be left up to the states.
Based on this logic, it’s hard to see what argument he would make forbidding a state from allocating its EC votes based on the national popular vote.
Well this brings up another question: why have the NPVIC at all? Why not talk states into passing their own laws mandating an elector vote for the winner of the national popular vote? It seems like the construction of this Compact will lead to much of the legal wrangling over it. On the other hand states passing their own electors-go-with-national-winner laws looks like it’s allowed as of today.
Question for clarification: The SCOTUS decision only means states can force electors (under penalty of law) to vote for the state’s winning candidate, but means a faithless vote still counts, right?
Because if the penalty is light enough, an elector who has the power to swing an entire nation’s history and fate in his hands (say, it’s a 269-269 tie but one faithless elector would change the entire story,) may very well say “I’m not afraid of a measly $5,000 fine or one month in jail; this is worth going down in history for.”
I think there’s something to this, not least of which is that a compact between the states might, in and of itself, be a real constitutional problem. Some legal scholars believe that the NPVIC would require congressional approval.
The main point behind the NPVIC is that it only goes into effect once enough states sign on for it to have an impact. Part of the thought being that if a state just started doing it on their own, campaigning would essentially cease in that state.
Now that brings up more questions: how does this compact work? What were the laws passed by the NPVIC member states? “IF enough other states go in on it, it becomes law such that…” Are there laws just sitting there in those states, waiting for a green light? Can laws be written as conditionals of this type?
You can see the full text here:
Under article 4:
“This agreement shall take effect when states cumulatively possessing a majority of the electoral votes have enacted this agreement in substantially the same form and the enactments by such states have taken effect in each state.”
Unless I’m wrong, the states are not dictating who the electors have to vote for, they’re dictating that the electors have to vote for who they pledged to vote for initially.
Then the state determines which slate of electors will be sent to actually vote for president.
So with the compact I don’t think they’re changing how electors pledge themselves to party/candidate, just how they decide which slate of pledged delegates to send (and requiring people to stick to their original pledge).
Sounds insane to me, surely you are allowed to change your mind - current situation would be a case in point, imagine a close relative dies because you didn’t take Covid seriously - that’d be a pretty compelling reason for you to want to change your vote from the current administration or their party
Remember, though, that we’re not talking here about individual Americans who walk into the ballot booth in early November a pull a lever or push a button to vote for president.
We’re talking about the relatively small number of people (538, to be precise) who have been selected by the winning presidential candidate’s party in each state to cast their electoral vote for president. These people have been chosen by their parties precisely for their party loyalty, and they pledge to cast their votes in a way that reflects the majority vote of the people within their state.
You don’t get to be one of those electors in the first place if you’re on the fence about which candidate should get your vote. The position of elector is chosen from among the party faithful. Electors are, like anyone else, allowed to change their mind about who they would like to be president, but in states requiring pledges, they’re not allowed to let that change of mind affect the way they vote. If they don’t think they can stay true to their pledge, they shouldn’t ask to become an elector in the first place, and if they change their mind after being chosen, they should either do what they promised to do, or give up their place to someone else.
Issues creep up from time to time that would be considered matters of conscience - for example locking up children of migrants in prisons - surely an elector has a right to decide that the party line cannot be justified, or what about decisions about going to war, or abortion or many others - every party has representatives who have varying degrees of view of the mainstream of their party.
Seems to me to be a way of stifling debate and lack of mature judgement.
We’re quickly approaching GD territory, but the elector is chosen for one reason only, the elect a specific person the voters have chosen. Not to represent a party, or for any specific ideals. I think in some states the electors might be on the ballot, but in Illinois, I just vote for who I want to be president and the electors are then assigned based on that vote.
Also, remember that the electors votes about one month after the general election. This isn’t like “well, one year ago I liked this guy but now things are completely different.”
the bar for amending the constitution is rather high, it isn’t a matter of simple legislation.
As a general proposition, I agree with you.
But the central point that the Supreme Court was making in this issue is precisely that the electors are not, in fact, expected or required to show any judgment, mature or otherwise. They are, quite literally, supposed to be instruments of their respective parties, and their votes are nothing but formalities whose purpose is to reflect the will of the majority of voters in their respective states.
While the founders hoped and expected that electors would exercise mature and independent and virtuous judgment when voting for president, the founders also hoped that this judgment would occur outside the context of political parties. That’s why, until the 12th Amendment was passed, electors made two votes for president, with the highest vote-getter becoming president and the second-highest becoming vice-president. They then ended up with situations where the president and vice-president not only came from different parties, but vehemently disagreed on policy, and actively disliked one another.
In the world of political parties, presidents are chosen as, in many ways, representatives of their parties, and electors for president are supposed to hew to party lines in their votes.
Won’t happen. Count the number of states with five or fewer electors. There’s more than enough to block any amendment. No state – Republican or Democrat – will vote to weaken its influence on the election.
Yeah, I gathered that. I meant that the Republicans would likely become eager to abolish the EC if an election were to take place where it no longer benefited them. But, given the current trends in the U.S. electorate, that probably isn’t going to happen anytime soon.