Last Tuesday, the United States Court of Appeals for the 10th Circuit I decided that Presidential electors are not bound by the variety of state laws that determine how to vote. Specific participants in the case including Michael BacaColorado elector in the 2016 election who pledged his support to Democratic presidential candidate Hillary Clinton but instead tried to cast a vote for former Ohio Governor John Kasich.
The United States Constitution created the Electoral College as a republican means of electing our nation’s executive branch. It was to be a multi-layered institution similar to the electoral organizations in the Roman Empire, the Holy Roman Empire, the Republic of Venice, and many others.
As a balance between democracy and oligarchy, it was intended to be an institution in which citizens would elect thoughtful and wise civic leaders and representatives who would then gather to cast votes for president and vice president. But the institution has undergone enormous change since its inception at our nation’s founding—including the norm that electors are largely supplements to a state’s popular vote.
However, current constitutional law does not support a legal, but rather a normative, restriction of voters’ rights once they take office. most states introduce laws requiring voters to vote in accordance with the popular vote in their state, with penalties ranging from fines to criminal penalties.
However, as Judge McHugh rightly pointed out written last tuesdayRegardless of the standards and potentially better ways to design the system, in its current form Electors have freedom and protection in how they cast their votes, even if their vote conflicts with the election results in their state.
The electors are established by Article II, Section 1 of the Constitution regarding their role in selecting the President and Vice President. The qualifications, selection process, and powers of the electors are then detailed in various amendments. The Constitution expressly mandates that the states power was given appoint their electors as they see fit, with all states currently doing so by popular vote.
However, these electors remain free to vote in the manner they choose, since the Constitution only provides that the states may determine how the election is to be made, but they may not actually direct the actions of the electors. If the states had such control, it would be similar to states passing laws that allow them to order a U.S. senator or U.S. congressman to vote a certain way on federal legislation—an absurd idea.
The last time the U.S. Supreme Court ruled on electoral freedom was in 1952 in the case of Ray v. Blair. The Supreme Court ruled then it was in accordance with the constitution that the states should require electoral candidates to promise to vote for their party’s candidates, because that is the method of choosing electors expressly permitted by the Constitution. However, the Supreme Court has not decided the question of whether an elector, despite having made a promise, must actually cast his vote lawfully in accordance with such promise.
I was a Republican Party candidate for elector in Virginia in 2016 for then-candidate Donald J. Trump, one of two statewide nominees from the Virginia Republican convention. When I said from to POLITICIAN AND wrote in Hill In 2016, for electors in our time to be able to vote outside their oath would require, from a moral perspective, overwhelming public support and a concerted institutional effort for our republic to be able to handle and accept such a reversal of established norms.
It is possible, even potentially beneficial, to return to the system the founders intended, in which electors met to deliberate and choose our nation’s leaders. Pledges, an electoral strategy that became the norm and then law, could still be a part of it.
On the other hand, it may also be beneficial to crystallize the Electoral College as it is currently designed, with the Electors being merely ceremonial figureheads. This would require federal legislation or even potentially a constitutional amendment, which amid current efforts to eliminate the Electoral College, as I was recently reported on Fox Newsmay prove equally challenging to implement.
Perhaps the Supreme Court will soon settle the unresolved question of whether the actual vote of the electors can be binding. I think not, but even such a decision would still not resolve many of the questions of norms and policy to which our elegant—if hereditary—system of electing our chief executive relegates us every four years.