Patterico's Pontifications

7/6/2020

SCOTUS: States Can Bind Electors

Filed under: General — Patterico @ 8:29 am



AP:

The Supreme Court ruled unanimously Monday that states can require presidential electors to back their states’ popular vote winner in the Electoral College.

The ruling, just under four months before the 2020 election, leaves in place laws in 32 states and the District of Columbia that bind electors to vote for the popular-vote winner, as electors almost always do anyway.

I have little to say about this. It seems relatively uncontroversial, but it’s worth noting.

57 Responses to “SCOTUS: States Can Bind Electors”

  1. Its astounding that the 10th circuit thought otherwise. Look out if Biden gets to put more crazies on the Federal bench.

    rcocean (2e1c02)

  2. Well, there goes the one chance that some dopey elector had to get his or her name in the newspaper by throwing their vote to some long-retired general or some nutjob socialist.

    JVW (ee64e4)

  3. I thought the big push from the left was to bind electors to vote for the national popular vote winner. Thus denying the agency of individual states and effectively making the president elected by popular vote.

    Edoc118 (3acc59)

  4. I thought the big push from the left was to bind electors to vote for the national popular vote winner.

    Baby steps, Edoc118. First you make it clear that electors are bound to vote as their state directs them to, then you push for states assigning their votes to the winner of the national popular vote.

    JVW (ee64e4)

  5. Mr 118 wrote:

    I thought the big push from the left was to bind electors to vote for the national popular vote winner. Thus denying the agency of individual states and effectively making the president elected by popular vote.

    Some states have passed such, conditional upon enough other states doing so. I cannot see how this ruling would prevent such.

    There were ten faithless electors in 2016, when it really didn’t matter. When it could have mattered, in 2000, there was only one, an elector supposedly committed to Al Gore left her ballot blank. However, having barely won the popular vote, Mr Gore’s partisans were trying their damnedest to persuade a few electors pledged to George Bush to change their votes; it would have taken only two such switches to tie the electoral vote at 269-269, throwing the election into the House of Representatives, which would have voted for Mr Bush, but a switch of three electors would have given the election to Mr Gore, assuming the faithless elector voted for him.

    The Dana in Kentucky (a56b03)

  6. RIP – Charlie Daniels
    _

    harkin (ca2d1a)

  7. Yeah, the “conservative” thing is still have faithless electors. I’m sure Reason magazine approves.

    rcocean (2e1c02)

  8. Is there any form of idiocy the losertarians don’t embrace? I’m reminded of Ron Paul opposing a border fence because it would be used to keep American in the USA!

    rcocean (2e1c02)

  9. Yet the Constitution required states to establish their own rules on the Electoral College, and those rules followed a partisan direction from early on in American history. While an insulated Electoral College might arguably better select a president, Americans throughout history have preferred that the Electoral College echo the popular will in the various states.

    Justice Elena Kagan, who delivered the opinion of the Court, argued that this idea did not make it into the Constitution.

    “All that they put down about the electors was what we have said: that the States would appoint them, and that they would meet and cast ballots to send to the Capitol. Those sparse instructions took no position on how independent from—or how faithful to—party and popular preferences the electors’ votes should be. On that score, the Constitution left much to the future,” Kagan argued. “And the future did not take long in coming. Almost immediately, presidential electors became trusty transmitters of other people’s decisions.”

    Early in our history, States decided to tie electors to the presidential choices of others, whether legislatures or citizens. Except that legislatures no longer play a role, that practice has continued for more than 200 years. Among the devices States have long used to achieve their object are pledge laws, designed to impress on electors their role as agents of others. A State follows in the same tradition if, like Washington, it chooses to sanction an elector for breaching his promise. Then too, the State instructs its electors that they have no ground for reversing the vote of millions of its citizens,” Kagan wrote.“

    https://pjmedia.com/election/tyler-o-neil/2020/07/06/unanimous-supreme-court-rules-states-can-punish-faithless-electors-in-electoral-college-n609020
    _

    harkin (ca2d1a)

  10. If you read the decision, as I did, it would seem to give almost no room for the “Popular Vote Compact” as it relentlessly couches the choice of electors as following the choice made by the state’s voters. Further, it says

    “Long settled and established practice” may have “great weight in a proper interpretation of constitutional provisions.”

    which would argue forcefully that the devolution of the legislature’s original power to the voters of the state cannot be rescinded after more than a century of established use.

    Kevin M (ab1c11)

  11. Justice Elena Kagan, who delivered the opinion of the Court, argued that this idea did not make it into the Constitution.

    “All that they put down about the electors was what we have said: that the States would appoint them, and that they would meet and cast ballots to send to the Capitol.

    That;s exactly why ou would say they cold not be bound.

    Now the whole conception described n the Federalist Papers, never took place. Already by 1796 Electors were chosen fr whom tey were going to vote for. The system in fact produced an unintended result in the Election of 1800, and the constitution had to be amended to avoid that. But in the 12th amendment, they again took no position on whether electors could be bound.

    In 1872 and in 1912, a candidate died before the electors could vote. (in both cases for a losing candidate. In 1872 the second place presidential candidate and in 1912, the third place vice presidential candidate, who died in fact even before the November election.)

    Sammy Finkelman (70b0bc)

  12. Some states have passed such, conditional upon enough other states doing so. I cannot see how this ruling would prevent such.

    Read the damn thing and come back. First paragraph of syllabus:

    When Americans cast ballots for presidential candidates, their votes actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns. The States have devised mechanisms to ensure that the electors they appoint vote for the presidential candidate their citizens have preferred. With two partial exceptions, every State appoints a slate of electors selected by the political party whose candidate has won the State’s popular vote. Most States also compel electors to pledge to support the nominee of that party. Relevant here, 15 States back up their pledge laws with some kind of sanction. Almost all of these States immediately remove a so-called “faithless elector” from his position, substituting an alternate whose vote the State reports instead. A few States impose a monetary fine on any elector who flouts his pledge.

    This is echoed again and again in the decision. It is the state’s voters whose choices are being carried by the electors. There is not one iota of comfort here for new schemes based on the legislature reclaiming an authority long devolved.

    Kevin M (ab1c11)

  13. But in the 12th amendment, they again took no position on whether electors could be bound.

    And either Thomas is correct, and this means it is WHOLLY within the state’s prerogative to decide whether to bind them (Amendment 10), or the majority is correct and Article II implicitly grants the states the power to do so. The court treats the vote as a proxy, which historically it has always been.

    Kevin M (ab1c11)

  14. Question: Would a registered voter in California have standing to sue the state over it joining the Popular Vote Compact? One would hope that such a challenge would occur and be decided before it actually came into play.

    Kevin M (ab1c11)

  15. Meanwhile, political consultants who wanted to make robocalls to cell phones sued that the single exception to the current ban — dunning people for government debts — was a content-based exception and they, too should be allowed to make these robocalls.

    The Court agreed and struck down the government-debt exception, which probably wasn’t the result that the political consultants wanted

    Kevin M (ab1c11)

  16. The records we have about the debates over the Electoral College indicate clearly that the Framers intended it to dilute the power of the people, because they were suspicious of populism. The people once could not vote directly for U.S. Senators — instead, they voted for their state legislators, who would then choose the senators themselves. The structural comparison is obvious…people vote for electors, and then electors choose the president. Now, I think it’s indisputable that the Electoral College has not worked the way the Framers intended it to work starting very early on — really, as early as 1796. But that doesn’t change the intention.

    If states can set whatever criteria they please restricting the way electors vote (as long as, presumably, those criteria are not obviously partisan), then they should be able to bind electors to the winner of the national popular vote. They may also be able to restrict electors from voting for any candidate who does not meet a requirement set forth by the state — perhaps releasing two years’ worth of tax returns, or waiving confidentiality rights under any pre-existing NDAs. And what if two states should pass contradictory requirements, such that a candidate could not win the electoral votes of both? This decision does not solve any constitutional crisis about the Electoral College. It just opens up a whole host of new ones.

    This decision should indeed be uncontroversial. It’s wrong. The justices are wrong. Anyone who supports it or agrees with it is wrong.

    Demosthenes (7fae81)

  17. which would argue forcefully that the devolution of the legislature’s original power to the voters of the state cannot be rescinded after more than a century of established use.

    That’s the “organic growth of the Constitution” theory in a nutshell.

    Kishnevi (67237e)

  18. …the devolution of the legislature’s original power to the voters of the state cannot be rescinded after more than a century of established use.

    Kevin M (ab1c11) — 7/6/2020 @ 10:51 am

    “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; further, if the Manner remain consistent for a sufficiently lengthy period of Time, the grant of power to whichever Body (or Bodies) the Legislature has considered responsible shall be deemed irrevocable, and there shall be no take-backsies.”

    What Article II, Section 1 of the Constitution does not say.

    Demosthenes (7fae81)

  19. As this was not directly addressed in the 18th century Constitution, that it merits any shrug of intent from the ‘originalists’ crowd in the 21st century is amusing.

    DCSCA (797bc0)

  20. What Article II, Section 1 of the Constitution does not say.

    The states have, each and every one, by choice, abandoned that right and conferred the decision solely on their voters. They have done so for varying times, but none less than 150 years. They cannot reclaim it. And if you read this decision, there is NOTHING in it that argues that they could.

    Kevin M (ab1c11)

  21. That’s the “organic growth of the Constitution” theory in a nutshell.

    Common law works that way, too. When something that could be done 3 ways is done only one way for 8 generations without a break, it has been decided.

    Kevin M (ab1c11)

  22. This decision should indeed be uncontroversial. It’s wrong. The justices are wrong. Anyone who supports it or agrees with it is wrong.

    No, you are. 9-nothing wrong. It did not work that way even during the time when all the Founders were alive. No one argued that the results of the early elections were “wrong” or that the electors could vote for whomever they wanted. And they didn’t. And because they didn’t, the election of 1800 was buggered. So they changed the Constitution so that the same proxy voting system would not result in a tie every time.

    They could have written the 12th Amendment to make clear that electors had discretion — as two states had done with internal colleges — but they did not. Your argument seems to be that they meant to, but forgot.

    Kevin M (ab1c11)

  23. They cannot reclaim it.

    Of course they can. State legislatures have previously changed the form in which electors were chosen, and they can do so again. They haven’t chosen to exercise this power in well over a century, as you say. And if they tried to do so, many of their members would no doubt be voted out (or recalled) at the next opportunity by an angry electorate. But those facts are immaterial to whether they still have their power, and to whether they can still exercise it. Your assertion that they do not and/or cannot ignores the plain text of the Constitution, and is therefore easily dismissed.

    And if you read this decision, there is NOTHING in it that argues that they could.

    Kevin M (ab1c11) — 7/6/2020 @ 11:57 am

    Because nothing needs to. Because it’s literally right there.

    Demosthenes (7fae81)

  24. No, you are. 9-nothing wrong.

    By this logic, starting in 1896, I would have been 7-1 wrong that racial segregation is forbidden by the Constitution…until 1954, when I would have been 9-0 right. And in the intervening six decades, the Constitution itself would not have changed in any way significant to the question.

    If that’s the logic you’re comfortable with, go ahead.

    Demosthenes (7fae81)

  25. Because nothing needs to. Because it’s literally right there.

    An argument that ALL nine justices expressly discarded. The only difference between Thomas and the majority is which power the states were using. Thomas said that BECAUSE the Constitution was silent, the states had plenary power to set the rules.

    Kevin M (ab1c11)

  26. If that’s the logic you’re comfortable with, go ahead.

    Harlan’s (correct) dissent in Plessy existed. No dissent exists here.

    Kevin M (ab1c11)

  27. But those facts are immaterial to whether they still have their power, and to whether they can still exercise it

    I await the court case on the Popular Vote Compact. I see you favor it.

    Kevin M (ab1c11)

  28. I await the court case on the Popular Vote Compact. I see you favor it.

    I do not. And one of the few remaining obstacles in its way got overturned today, which makes me profoundly unhappy.

    You, on the other hand, must be quite pleased. Down with the Electoral College, right?

    An argument that ALL nine justices expressly discarded.

    And yet, it’s still the correct argument. They could take the power back for themselves, if they so chose.

    Sorry if you don’t see that. And sorry you don’t see how your side is helping the NPV-ers.

    Demosthenes (7fae81)

  29. I do not. And one of the few remaining obstacles in its way got overturned today, which makes me profoundly unhappy.

    You, on the other hand, must be quite pleased. Down with the Electoral College, right?

    I’m going to assume that you are accidentally misrepresenting my arguments rather than being intellectually dishonest.

    Kevin M (ab1c11)

  30. If you read the decision, as I did, it would seem to give almost no room for the “Popular Vote Compact” as it relentlessly couches the choice of electors as following the choice made by the state’s voters.

    Only because the state legislature chooses to.

    What it really says is that the power of the state legislature over the selection of electors is virtually absolute.

    Which is exactly what the constitution says, too.

    Dave (1bb933)

  31. I’m going to assume that you are accidentally misrepresenting my arguments rather than being intellectually dishonest.

    I was intentionally misrepresenting your arguments. Call it a return discourtesy. After all, you misrepresented my position. I think I was pretty plain in my first comment (#16) that every scenario I outlined in my second paragraph was a bad thing.

    Then again, I guess I didn’t explicitly say that.

    Then again, even if I had, you probably wouldn’t believe my plain language.

    Demosthenes (7fae81)

  32. From the syllabus of today’s decision:

    Article II, section 1 gives the States the authority to appoint electors “in such Manner as the Legislature thereof may direct.” This Court has described that clause as “conveying the broadest power of determination” over who becomes an elector. And the power to appoint an elector (in any manner) includes the power to condition his appointment, absent some other constitutional constraint. [Examples of conditions a state could impose omitted]

    Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does. […]

    Dave (1bb933)

  33. Since its inception, the Electoral College has attempted to cast the votes of the states faithfully. No state has, at any time, even suggested that its electors are free agents. Hamilton was wrong. I encourage folks to read Kagan’s opinion which, if anything, suffers from excess readability.

    But let’s take the opposite case. Assume for a moment that electors ARE free agents and might even vote for a candidate not on the popular ballot, or for a candidate that won fewer votes in their state (or even overall). What then?

    Let’s start with the electors’ qualifications, which seem to be some form of cronyism. They gave money, or worked tirelessly, or someone wants their help in something else. It certainly isn’t becasuse the voters chose them — in almost every state no one knows who they are. A far less terrible system would have the Senators and Congressmen each have one vote. At least they have some lines of support, some legitimacy.

    For these people to choose a President on their own terms would be the VERY last time the electoral college was used, and probably would not even hold up in the instance.

    Terrible, terrible idea, which is probably the reason is was laughed off by 1796.

    Kevin M (ab1c11)

  34. Furthermore, today’s decision has nothing whatsoever to do with which electors are CHOSEN (which is the point of the Popular Vote Compact).

    Rather, it involves what the electors who ARE chosen can and cannot do (or more precisely, what restrictions states may enforce in the discharge of their duties as electors).

    And the court confirmed that the states’ power in this area is virtually unlimited, just as the Constitution says.

    Dave (1bb933)

  35. #32.

    Yes. This does not imply (and nothing in the decision implies) that it is not the state’s voter’s choice that they are echoing. Nor does it suggest anywhere that the legislature could mandate they BE faithless.

    Kevin M (ab1c11)

  36. Furthermore, today’s decision has nothing whatsoever to do with which electors are CHOSEN (which is the point of the Popular Vote Compact).

    It says, at least a dozen times, that they are to relay the state’s voter’s choice. And, in relying on time and custom in the decision, it makes it quite awkward to revert to one old practice and not another.

    Kevin M (ab1c11)

  37. Although I’ll admit that Thomas’ argument (“text is silent”) might allow the Popular Vote Compact.

    Kevin M (ab1c11)

  38. Great comments, Dave, Kevin M.

    felipe (023cc9)

  39. Baby steps, Edoc118. First you make it clear that electors are bound to vote as their state directs them to, then you push for states assigning their votes to the winner of the national popular vote.

    If the popular vote compact were to take effect, why do you need this ruling to force Trump electors to vote for Trump or Biden electors to vote for Biden?

    Dave (1bb933)

  40. All states but South Carolina had adopted a popular vote method of choosing electors by 1828. South Carolina did not change until it was readmitted to the Union.

    Kevin M (ab1c11)

  41. If the popular vote compact were to take effect, why do you need this ruling to force Trump electors to vote for Trump or Biden electors to vote for Biden?

    Don’t. I do need a ruling to force them to respect their state’s voters though, which is what this ruling does.

    Kevin M (ab1c11)

  42. I admit that this decision does not directly bear on the Compact. But if you read it to see if they are opening up any gap for that to slide through, you see that at every opportunity they resolutely fail to do so. The repeated reference to the state’s popular vote in guiding the electors, and the State’s interest in protecting those voters, gives one hope that the inevitable Compact case will result in the end of the Compact idea, short of an amendment. I do hope that the Compact is tested before it comes into play.

    Kevin M (ab1c11)

  43. Read Kagan’s decision. It won’t take more than 15 minutes. She’s quite a good legal writer, whatever her other faults.

    Kevin M (ab1c11)

  44. Popular vote compact. Heh! It’s funny how history repeats itself, even in a pacified, pampered and feminized new generation.

    In 1776, faced with rule by a German nutjob, third of his line, the Founders changed the way they picked their head of state. Now, with Tatiana Drumpfelschitzel, third of zir line, they’re looking to do the same, but this time with ballots not bullets.

    nk (1d9030)

  45. #33 the original point was for states to send electors to DC and select the President. The VP was to be the 2nd choice. This system became unworkable as soon as political parties came into being. Everyone voted for the political parties ticket and the EC just rubber stamped it. Talking about “populism” is a red herring.

    We can’t ever go back to that original idea, because it was gone as early as 1808. Faithless electors mean THEY choose the President, not the voters or the states. Since no one knows who they are, it would be insane to allow them a choice. As for the popular vote controversy, this is an attempt to nullify the votes of a majority of a states voters. A state could vote 70-30 R, and yet its electors would ignore that, and all vote D, because the D candidate won a PLURALTY of the nation wide vote. That is insane.

    rcocean (2e1c02)

  46. Kevin I think the key word you’re missing in Kagan’s opinion is “interpretation”:

    “Long settled and established practices” may have “great weight in a proper interpretation of constitutional provisions”

    There is (perhaps) some interpretation involved in deciding whether electors are free to vote as they please, state law notwithstanding.

    But there is no interpretation necessary as to whether states may appoint electors “in such Manner as the Legislature thereof may direct”. Because it says those exact words.

    Dave (1bb933)

  47. The repeated reference to the state’s popular vote in guiding the electors, and the State’s interest in protecting those voters, gives one hope that the inevitable Compact case will result in the end of the Compact idea, short of an amendment.

    Kevin M (ab1c11) — 7/6/2020 @ 1:29 pm

    Doesn’t need an amendment. Needs states with 270 votes to agree to it, plus Congressional approval to satisfy Article I, Section 10 requirements.

    Demosthenes (7fae81)

  48. Now, with Tatiana Drumpfelschitzel, third of zir line, they’re looking to do the same, but this time with ballots not bullets.

    And when push comes to shove, ze will kill your friends and family to remind you of zir love!

    Dave (1bb933)

  49. But there is no interpretation necessary as to whether states may appoint electors “in such Manner as the Legislature thereof may direct”. Because it says those exact words.

    Dave (1bb933) — 7/6/2020 @ 1:38 pm

    Don’t bother, Dave. I’ve been trying to say that.

    Demosthenes (7fae81)

  50. Pete Buttigieg
    @PeteButtigieg

    America would be better off if we got rid of the Electoral College.
    __ _

    Stephen L. Miller
    @redsteeze

    You should run for President on this idea.
    __ _

    Brian Barney
    @bbarney22
    ·
    Trump seriously broke this entire party when he won in 2016 lol they still can’t get over it
    __ _

    InTheRightColumn
    @TheRightColumn
    ·
    Counterpoint: every single city run by Democrats
    __ _

    HenryPorter
    @OCSaltLife
    ·
    Mobs are doing a great job protecting our cities. Yes, fully agree, Mayor Pete. More mobs!
    _

    harkin (ca2d1a)

  51. “in such Manner as the Legislature thereof may direct”

    I have a deed. It says unequivocally that I own a piece of property. In fact, it has been in my family for 230 years. But for the 150 years, I have allowed people to traipse across that land as they will. Now I want to make them stop. What are my chances?

    Kevin M (ab1c11)

  52. *But for the lst 150 years, we have

    Kevin M (ab1c11)

  53. Don’t bother, Dave. I’ve been trying to say that.

    Maybe if you say it 40 more times I will begin to care. The states have willingly abandoned that right. They cannot take it back. Expectations. Adverse possession. State courts not permitting it. Voters not permitting it. All kinds of reasons. If 6 months of gay marriage absolutely prevents repealing gay marriage, what chance do you think a right the people have held for 150 years have of being revoked?

    Kevin M (ab1c11)

  54. OH. You’re talking some ideological theory! I get it. Try the real world.

    Kevin M (ab1c11)

  55. The states have willingly abandoned that right. They cannot take it back. Expectations. Adverse possession.

    Hmm.

    So, sort of like a Living Constitution?

    I’m sorry, Kevin, but what you’re arguing is nonsense on stilts. There is no “adverse possession” when it comes to powers explicitly reserved to the states by the Constitution.

    Dave (1bb933)

  56. The best constitutional argument I can think of against the popular vote idea is guarantee clause:

    “The United States shall guarantee to every state in this union a republican form of government”

    At least here there is sufficient vagueness to warrant hair-splitting.

    A “republican form of government” is one in which people vote to elect those who represent and govern them. Would a system where an election is held for show, but political offices are filled by lottery, or sold to the highest bidder, be a republican form of government? Arguably not.

    On the same basis, I think one could challenge a state election in which candidates receiving fewer votes were declared the winner, which is what the popular vote compact proposes to do.

    Dave (1bb933)

  57. …what chance do you think a right the people have held for 150 years have of being revoked?

    Kevin M (ab1c11) — 7/6/2020 @ 8:15 pm

    Practically, very little. As I have already said.

    But the National Popular Vote Compact, which now has one less barrier standing in its way, would not be a revocation of the people’s right to vote. Indeed, it would be a positive affirmation of it. It would, however, be a rejection of the Electoral College, and a rejection of federalism generally. Which is plenty bad enough.

    All that would be required is for enough states, with enough electoral votes, to say that they would honor the choice of the national electorate in determining their electors, rather than merely the preference of the citizens of their state. I’m sure that will be taken to court. It should.

    But if the states have the power to determine how they choose their electors (which they do, in the plain text of the Constitution), and if they have the power to bind their electors to vote as they wish (which the Supreme Court today has said they do), and if they have the power to enter a compact with each other pledging their votes in a certain way (which they do, under Arricle 1, subject to congressional approval, which I presume will be forthcoming the next time the Democrats have control of both houses of Congress), then what leg does a constitutional challenge have to stand on?

    The Electoral College would not thereby be abolished. It would merely be subverted. Populism, which the Founders tried to protect us from, would not be enshrined in the Constitution. It would merely be the de facto law of the land. Federalism would be an empty concept, as the people would effectively have in their hands the full power to choose all elected officers in the federal government by majority vote. Which they were never meant to have.

    Let’s see what good your appeals to history and long-standing precedent are then, against the whims of a fully empowered King Mob.

    Demosthenes (7fae81)


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