In Chiafalo v. Washington, 591 U.S. ___ (2020), the U.S. Supreme Court ruled unanimously that the U.S. Constitution permits a state to enforce a presidential elector’s pledge to support his or her party’s presidential nominee if the candidate wins the popular vote in the state. The ruling was the first time the Court upheld the authority of states to punish “faithless electors,” namely, electors who do not cast their Electoral College vote for their party’s nominee despite a pledge to do so. The Court had previously ruled in Ray v. Blair, 343 U.S. 214 (1952), that states can permit political parties to require prospective electors to pledge to support their party’s candidate before being allowed to be an elector, but the case did not address enforcement.
Relying on Alexander Hamilton’s argument in Federalist 68 and the Twelfth Amendment of 1804, some electors had argued they were constitutionally authorized to cast their electoral vote for the candidate of their own choice regardless of the voters’ choice. Across 23,507 electoral votes cast in 58 presidential elections, only 165 were not cast for a pledged candidate, although 43 percent of those were due to the death of a party’s nominee. Faithless electors have not changed the outcome of any presidential election.
In Chiafalo, four Democratic electors in Washington who were pledged to support Hillary Clinton in 2016 cast their electoral votes for other candidates despite Clinton’s win in the state. Under state law, each faithless elector was fined $1,000. Three of the electors contested the fines, thus ultimately resulting in the U.S. Supreme Court case. Relying on Article II, §1, which gives the states authority to appoint electors “in such Manner as the Legislature thereof may direct,” Associate Justice Elena Kagan opined for the Court: “The Constitution’s text and the Nation’s history both support allowing a State to enforce an elector’s pledge to support his party’s nominee–and the state voters’ choice–for President.”
In 2019, Washington enacted a new law allowing the state to remove a faithless elector from the Electoral College so as to appoint a new elector willing to support his or her party’s winning candidate. Such a law was at issue in a companion case to Chiafalo, Colorado Department of State v. Baca, 591 U.S. ___ (2020), which, in a per curiam ruling, upheld Colorado’s law providing for the replacement of faithless electors with faithful electors.
These decisions strengthened the hands of the state governments in the Electoral College and counteracted growing political efforts to convince electors to be faithless in order to prevent another election outcome like 2016 in which the winner of the Electoral College vote, Donald Trump, had lost the popular vote. Whether these rulings cut for or against the proposed National Popular Vote Interstate Compact is unclear.
SEE ALSO: Electoral College
Bibliography
Gabrielle Engel, “Power to the People: The Supreme Court’s Confirmation of State Power in the Wake of Faithless Electors,” University of Miami Law Review 75:2 (Winter 2021): 620-659 and Note, “Article II–Electoral College–Faithless Electors-Chiafalo v. Washington,” Harvard Law Review 134:1 (November 2020): 420-429.
