A Republic, If You Can Keep It, Part II: DECIDED
This week, we’re going back to the Electoral College, with a wrap-up of the Supreme Court’s recent decision in Chiafalo v. Washington, which we covered on the blog a few weeks back.
I’m not going to go through the whole summary of the case again—you’re adults, you’re perfectly capable of clicking this link and reading the review—but I will briefly touch on the key points so that we’re all on the same page.
Quick refresher: what we’re talking about here on a macro level is your right to vote, and more specifically, your right to have your vote counted for the candidate of your choice. As we covered a few weeks ago, the way your vote gets counted in America is via the Electoral College.
The 2016 Electoral College Map
That is, when someone like you or I votes for president, we’re casting a vote in the general election, but we’re also casting a vote for a slate of party electors who participate in the Electoral College. Before taking office, those electors typically make a pledge or promise to go to the Electoral College and cast their votes for the candidate who wins the popular vote in their state. So, to use an example from the current case, in the 2016 election, a majority of the State of Washington voted for Hillary Clinton. Those Washingtonians who voted for Clinton were also voting for 12 Democratic electors, each of whom had taken a pledge to vote for her in the Electoral College. Under normal circumstances, what would have happened next is that those 12 electors would have gone to the state capitol and cast 12 Electoral College votes in favor of Hillary Clinton. The same would have been true if Donald Trump had won the popular vote in Washington, only in that case it would have been 12 Republican electors traveling to the state capitol to cast their votes.
But of course, if everything had gone according to plan, we wouldn’t be here, and the Supreme Court wouldn’t be involved. What happened instead is that three of those Democratic electors changed their mind and instead cast their votes for someone who wasn’t even running for president. (Colin Powell, for those scoring at home).
You might be asking yourself, why? Why would 12 Democratic electors essentially steal 3 electoral votes from the Democratic candidate for president?
Well, the answer is complicated. You see, these electors were part of a national movement whose goal was to, in essence, hijack the presidential election. They called themselves the Hamilton Electors (referring to Alexander Hamilton, who was instrumental in creating the Electoral College system that we know). Their plan was to convince electors all across the country to disregard their pledges and cast their votes for someone other than the person who won the popular vote in their state. Specifically, the Hamilton Electors wanted Republican electors to vote for someone other than Donald Trump for president. They hoped that if they could swing enough votes, neither candidate would win a majority of the Electoral College, at which point the House of Representatives would have decided the election.
But what does that have to do with Democratic electors in Washington?
Well, the Washington electors were intended to be an example to the rest of the country’s electors. They hoped that if other electors saw them disregarding their pledges, those other electors might feel compelled to do the same. This, of course, failed spectacularly. The faithless electors in Washington were each fined $1,000 as the result of a state law that penalized them for breaking their pledges and voting for a non-majority candidate.
The Electors appealed the fine. They argued that the Constitution did not permit the State of Washington to fine them for breaking their pledges and voting for a candidate of their choice. The Electors were represented in court by a man named Lawrence Lessig, a Harvard law professor famous (at least among law nerds like me) for his outspoken views about the American electoral system, and for being one of the masterminds behind the Hamilton Electors. Lessig and the Electors ultimately took the case all the way to the Supreme Court.
Lawrence Lessig
Now, I want to keep this week’s post (relatively) short so that’s all the background we’re going to cover. For those of you that want to know more, just scroll up and click the link for the full review of the case.
And for everyone else, let’s turn to the decision.
The Decision:
We’ll begin with the obvious: despite all the high-minded ideals and politics that came up in this case, the decision was not even remotely close. The Electors lost, by a unanimous vote of 9-0. Now, you’re a twenty-first century American, you’ve had your share of traumatic experiences on social media. So you know how hard it is to get nine ordinary people to agree on something, let alone nine elderly lawyers who’ve made their careers arguing about which dictionaries to use on language from the 1700s.
And yet, here we are.
But that’s not to say that all nine of the Justices were in complete agreement. In fact, there are two separate opinions in this case: a majority opinion written by Justice Kagan and joined by six other Justices, and a concurring opinion written by Justice Thomas and joined by Justice Gorsuch. What that means is that while all nine justices agreed about the result, they did not all agree on the proper means of reaching that result.
The result, of course, is that states like Washington can penalize electors for violating their pledges and failing to vote for their party’s candidate. That’s the holding. When we look back in 15 years on this case, that’s what we’ll remember. But how does the Court get to that result? And what does it mean for the future?
Let’s break it down.
As you no doubt remember from the last review (seriously, just scroll up and click the link), the Constitution doesn’t have much to say about the process by which presidential electors choose the president. The Electoral College framework is established by Article II of the Constitution, and by the Twelfth Amendment. If you were to read them together, you’d get this:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress. The Electors shall meet in their respective states and vote by ballot for President and Vice- President. . . .”
Now, looking at that language, you might be thinking that it doesn’t seem to answer the question we’re dealing with in this case. Sure, it talks about how the electors are appointed and it talks about how they do their jobs once they’re in office, but it doesn’t mention anything about pledges or fines. If you were thinking this, then you and Justice Kagan disagree. I’m not going to offer my opinion on whether she’s more qualified than you, I’m just going to give you her reasoning.
Justice Elena Kagan, who may or may not be more qualified than you to interpret the Constitution.
Justice Kagan’s position is essentially this: (1) that Article II and the Twelfth Amendment give states like Washington the power to sanction electors; and (2) that even if Article II and the Twelfth Amendment don’t explicitly give states that power, we can tell from the history and traditions of the country that the power exists.
Let’s look at those two points in turn.
The first one is pretty simple. Justice Kagan’s stance is that when the Constitution says the states can appoint electors “in such Manner as the Legislature thereof may direct,” what it’s really saying is that the fifty states have the broadest possible control over the process of appointing presidential electors. Because of this control, the states are allowed to set job conditions (or conditions of employment, for you fancy folk), which each elector must satisfy before taking the job. So to use a common example, everyone agrees that the states can require electors to live in the state where they serve. And they can also require that electors take pledges about the way they will vote in the Electoral College. Justice Kagan’s view is that a fine like the one at issue in this case is just another job condition. To her, it’s just the same as if the State of Washington had said to its electors “you have to vote for the majority candidate or we’re going to fine you for it.” And since that’s the case, Article II and the Twelfth Amendment give the states the power to do it.
We’re not done though, because, of course, Justice Kagan is no dummy. She knows you’re skeptical about this holding. She knows you’re looking at the language of the Constitution and you’re thinking “Ok…I guess I can kind of see what she’s talking about. But it doesn’t really say anything about fines or job conditions, does it?” So she goes one step further and reminds us of the history. She notes that when the Constitution doesn’t directly address an issue, often the nation’s history and traditions will fill in the gaps.
And the history in this case is, in her view, overwhelmingly on the side of the states. From the beginning, presidential electors in America were understood as part of a bigger machine designed to express the will of people like you or me. Or, to quote a prominent historian, presidential electors were, “understood to be instruments for expressing the will of those who selected them, not independent agents authorized to exercise their own judgment.” Most people preferred it this way, and you can probably see why. When you go down to the ballot box and vote for your presidential candidate of choice, you want to be sure that the electors in your state are going to cast that vote properly. You don’t want to find out later that some rogue elector had cast your vote for Colin Fucking Powell (all due respect to Mr. Powell).
And so, in the early twentieth century, states began coming out with laws to prevent electors from going rogue like this. At first, these were mainly just pledge laws, but soon states like Washington began passing laws that actually penalized electors who breached their pledges. As a result of these laws, and of the general understanding regarding presidential electors, there have been, to date, less than 200 electoral votes cast for non-majority candidates over the last two centuries. To be precise, there have only been some 180 faithless electoral votes out of a total of more than 23,000 total votes (or, for the math-challenged, about .7%). And of those 180 faithless votes, more than a third came from the 1872 election, in which the Democratic Party’s candidate died just after Election Day, throwing a very morbid wrench into the whole process.
So, in theory and in practice, faithless electors have always been an anomaly in the Electoral College system. They are a bug and not a feature. Their existence essentially proves the rule that electors are supposed to vote for the majority candidate. And because of that, Justice Kagan’s position is that states are allowed to punish them for failing to do so.
Ok, got all that? Good, because it’s time to hear from Justice Thomas.
As I mentioned, Justice Thomas agrees with Justice Kagan and the majority about the result (that is, the Electors lose), but he disagrees about the right way to get there.
Justice Clarence Thomas
In Justice Thomas’ view, Article II and the Twelfth Amendment don’t answer the question in this case. In fact, in his view, the only thing that those sections do, based on their language, is give the states the responsibility to choose presidential electors by whatever means they see fit. That’s it. They don’t give the states the power to establish any conditions of employment. And even if they did, Justice Thomas doesn’t believe that’s what’s happening in this case. A condition of employment, in his view, is something a person has to satisfy before taking a job. So a pledge requirement might be a condition of employment, because if an elector refuses to take the pledge, they can’t take the job. But a fine is something different. A fine doesn’t come into play until well after the electors have taken the job, and it doesn’t come into play at all unless they break their pledge.
So for Justice Thomas, Article II and the Twelfth Amendment don’t answer the question. What next? Well, unlike Justice Kagan, Justice Thomas isn’t going to turn to history and tradition to find an answer. No, instead, he’s going to turn to another part of the Constitution. One of his personal favorite parts, in fact: the Tenth Amendment.
Now, I’ll forgive you if you aren’t familiar with the Tenth Amendment. It’s not one of the sexy ones, like the First or the Second or the Fourth. And it’s not one of the really powerful ones, like the Fourteenth. In fact, if you took a look at it, you’d probably come away unimpressed. Here it is:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Doesn’t sound like much, does it? Doesn’t really sound like it does anything at all, in fact. Well, that’s because it doesn’t, at least not in the way we’re used to.
Alexander Hamilton, who advocated for a strong central government and founded the Federalist Party
The Tenth Amendment deals with something called “reserved powers,” which are a concept left over from the founding of the nation. You see, when the fuzzy old white guys who created our system of government were debating that government in Philadelphia in the late 1780s, they ran into a bunch of political roadblocks. One of the main problems was that the governments of each of the thirteen states had different views on the appropriate role of the federal government. Those states all had their own beliefs on a range of subjects from organized religion to economics. And many of them believed that if the federal government were given too much power, it would rob the states of all these uniquely-held beliefs. Basically, they feared that a strong federal government would become to the states what the English crown had been to the thirteen colonies.
Thomas Jefferson, one of the most famous of the Anti-Federalists
And so the founders split into two main camps. These camps would later come to call themselves the Federalists, who favored a strong central government, and the Anti-Federalists, who favored strong state governments. In essence, those early debates were a lot like the two-party political debates we have today, only instead of Republicans and Democrats, they had Federalists and Anti-Federalists. In practice, of course, it was nothing like today, because our Founding Fathers, for all their failings, were capable of compromise. The Tenth Amendment is one of those compromises. What it says, essentially, is this: all the powers described in the Constitution are powers given from the People and the States to the federal government. Thus, every power that isn’t mentioned in the Constitution belongs to the People and/or to the States.
Unlike other constitutional amendments, the Tenth doesn’t create any rights or obligations. What it does though, is memorialize the balance of power between the federal government and the governments of the states. It sets up the framework for how our government works. And it produces the general rule that if the Constitution doesn’t give the federal government power over something, the federal government doesn’t have that power.
Now, all those powers that aren’t mentioned in the Constitution are called “reserved powers” or “unenumerated powers,” and they are generally left up to the states. Justice Thomas’ position is that the power to sanction presidential electors is not mentioned in the Constitution. And, that being said, it’s a reserved power that lies with the states. If this is the case, then any state is free to sanction their presidential electors however they see fit, assuming those state laws don’t conflict with the Constitution. And in this case, as we’ve already seen, there’s nothing in the Constitution that prevents the states from sanctioning electors.
So, while Justice Thomas agrees with Justice Kagan that the state penalties in this case are constitutional, he would base that holding on the Tenth Amendment, rather than on the text of Article II.
You might be wondering at this point why Justice Thomas’ opinion only got support from one other Justice. That’s an interesting question. Certainly, it looks like a neater, simpler resolution than Justice Kagan’s majority opinion. But let’s consider the implications for a moment. What Justice Thomas is really saying in his opinion is that the Tenth Amendment should serve as the answer for us whenever we encounter a question that the text of the Constitution doesn’t answer. If we applied this rule rigidly, we’d be giving a tremendous amount of power to the states, and we’d be shifting the balance of power away from the federal government. Now, this may have been the approach that the drafters of the Constitution had in mind when they wrote the Tenth Amendment, but it hasn’t been a popular approach at the highest levels of Supreme Court law. In fact, generally, the balance of power between the federal government and the states has only swung more toward the federal government as time has passed.
While we’re on this subject, we might as well consider what this sort of arrangement would mean for constitutional law as we know it. As an example, let’s take another famous case we talked about recently, Roe v. Wade, and apply Justice Thomas’ reasoning.
(Because that’s such a politically-charged case, now seems as good a time as any to remind you that we aren’t here to talk politics. This is about the facts and the law, nothing else. If you’re not capable of checking your political opinions at the door, then this isn’t the place for you.)
Anyway, as I mentioned when we discussed Roe v. Wade (hey look, another link—click it), the right to have an abortion is not something that appears directly in the text of the Constitution. Instead, the Supreme Court found that that right existed in a general right of privacy implied by a combination of constitutional amendments. That said, you can probably imagine what Justice Thomas would have to say about the abortion right. What he’d likely say, given his logic in this case, is that since the Constitution doesn’t provide a right to have an abortion, each of the states is free to regulate that subject as it sees fit (as a “reserved power”), so long as it does not come into conflict with some other constitutional provision. And that, in all likelihood, would mean the end of the abortion right across large parts of this country.
The same could potentially apply to a number of other rights that aren’t explicitly described in the Constitution, including the right to marry a person of one’s choosing, the right to raise children in a chosen manner, and even the right to be informed of your due process rights in a criminal proceeding.
In essence, what a rigid application of Justice Thomas’ reasoning would likely create is a system in which the law would vary dramatically between the states with respect to a number of key issues. In that system, there would be far less of the national uniformity that we’ve grown accustomed to from the Supreme Court.
As always, I’m not here to judge anyone’s beliefs or to offer you any opinion on whether this is good or bad, wrong or right. I’m just here to point out the possibilities. What you do with that is up to you.
Conclusion:
I want to mention one last thing before we go, and that’s that this case may not actually be the loss for the Electors that many people assume it to be. Yes, the Electors are out $1,000 each, and that’s unfortunate, but they did succeed in highlighting one of the strange circumstances created by the Electoral College system. And they managed to unite the whole of the Supreme Court, which is no easy feat. For some of the Hamilton Electors, including Mr. Lessig, this may have been the goal all along—not to win the case but rather to highlight the problems with the Electoral College and to motivate people to consider the alternatives (incidentally, I talked about a lot of these problems the last time we reviewed this case). If that’s true, then this may be one of those rare scenarios in which a Supreme Court case ends up in a win for everyone involved.
Unless you’re Colin Powell, of course.
Talking Points:
This case is all about your right to be certain that your vote for president is going toward that candidate when it matters the most.
The place it matters the most—the only place it matters, in fact—is in the Electoral College.
Most states have laws on the books that require presidential electors to take pledges promising to vote for the presidential candidate who gets the majority of votes in their state.
Some states, including Washington, even have laws punishing electors who break their pledges.
This case is all about whether those laws are constitutional.
The Court was unanimous in upholding Washington’s penalty law, but the Justices disagreed on the right way to get to that result.
Justice Kagan and the majority believe that Article II and the Twelfth Amendment give states the power to impose conditions of employment on the electors. In their view, a fine is just like a condition of employment, so it’s constitutional.
Justice Thomas and Justice Gorsuch believe that Article II and the Twelfth Amendment don’t answer the question. They believe that the power to punish electors is a reserved power covered by the Tenth Amendment.
Though the Electors ultimately lost, they may have gotten some of what they wanted—they showed a large part of America just how broken the Electoral College is, and they’ve spurred the ongoing discussions about how to change it.
Why This Case Matters to YOU:
This should come as no surprise. This case matters because you and I both care where our presidential vote is going. We want to know that our vote is being counted. And so a system that allows any alternative result isn’t something we can tolerate. On that analysis, this case is a victory for everyone involved.
That said, it’s still worth thinking about whether the Electoral College is an effective system in the first place. And it’s worth thinking about the two competing rationales that arose in the two opinions in this case. It’s worth considering which rationale we would like to see applied in future cases.
I’m not here to make your mind up. I’m here to give you the facts and the law so you can draw your own informed conclusion.
So what are you waiting for? Get out there and do it.
As always, don’t forget to stay up to date by following the blog on social media using the links above, and feel free to contact me directly via the Contact page with all your comments, concerns, and unsolicited political opinions. You can also sign up for the Impartial Review Newsletter using the link on the Contact page. Until next time.