'Faithless Electors' Bring New Questions For States

Law360 (November 5, 2020, 5:39 PM EST) --
Simon Cataldo
Simon Cataldo
Cory Liu
Cory Liu
Americans' votes for presidential candidates go not toward a specific candidate, but rather a political party's slate of candidates for the Electoral College. Each elector, in turn, casts ballots for president and vice president.

The Electoral College's arcane rules have twice in this century led to losses for presidential candidates — Al Gore and Hillary Clinton — who won the popular vote. But this year, due to the razor-thin margin separating the candidates under current projections, a lesser-known oddity of the Electoral College could rear its head: the possibility of "faithless electors."

In choosing their slates of electors, political parties tend to select party loyalists who they trust to vote for their parties' presidential nominees. But recent history has shown that such an outcome is not guaranteed.

In Chiafalo v. Washington, the U.S. Supreme Court earlier this year addressed the issue of whether a state may punish faithless electors who cast their Electoral College ballot for someone other than the winner of the state's popular vote.[1] The case arose from a gambit by three electors in the state of Washington who chose to back Colin Powell rather than Hillary Clinton in the Electoral College in the 2016 election.[2] The three faithless electors hoped to convince electors in states favoring then-candidate Donald Trump to defect, thereby reducing Trump's Electoral College count to below 270.[3] 

In the event that no candidate receives a majority of the votes of the Electoral College, the U.S. House of Representatives would decide the outcome. Under the procedure set forth by the 12th Amendment, each state's representatives would vote en bloc for a candidate, and each state's selection would count as one vote.[4] 

The electors' plan did not materialize. Only seven other faithless electors defected nationwide.[5] But as it so happened, Washington is one of 15 states that sanctions electors who betray their pledge to support the voters' chosen candidate.[6] In Washington, faithless electors are subject to a $1,000 fine.[7] The electors appealed their fine, which was upheld by the Washington State Supreme Court.[8] 

The U.S. Supreme Court concluded that states have the constitutional authority to "sanction an elector for breaching his promise" to vote for the state's popularly elected candidate.[9] The court's majority opinion, written by Justice Elena Kagan, found that the states drew this authority from Article II, Section 1, Clause 2, of the U.S. Constitution, which provides that states "shall appoint, in such Manner as the Legislature thereof may direct," its presidential electors.[10]

Justices Clarence Thomas and Neil Gorsuch, who concurred in the judgment, would have held that Article II — and the rest of the Constitution — did not expressly address the states' "authority to bind electors in voting."[11] Accordingly, the power to sanction electors resided with the states as required by the 10th Amendment.[12]

Chiafalo, therefore, answered the question of whether states can bind electors to cast a ballot in line with the popular vote. But such restrictions exist in only 15 states.[13] Chiafalo did not address what might happen if one or more of the 538 electors, most of whom do not come from those states, defect, and swing the election result.  

The defection of seven electoral votes, as occurred in 2016, could easily change the outcome of the 2020 presidential election, either putting a previously losing candidate over 270 votes, or dropping the winning candidate below the 270 threshold, meaning that the U.S. House of Representatives would decide the outcome. 

So what would occur if a sufficient number of electors needed to swing an election result defected? Would the voters belonging to the faithless electors' states have legal recourse?

The court's opinion in Chiafalo acknowledged that "[h]istory teaches that the electors were expected to support the party nominees as far back as the earliest contested presidential elections."[14] And the court indicated at oral argument that it was not blind to the potential problems created by allowing electors to be untethered to any pledge of fealty to the state's popular will. 

Justice Brett Kavanaugh, in particular, queried at oral argument whether faithless electors "disenfranchise voters in the state."[15] The scenario of a defection in the absence of a state law prohibiting it, however, was not squarely presented in Chiafalo. 

One could argue that the Founding Fathers originally intended for electors to exercise some degree of independent discretion in deciding which presidential candidate to vote for. Otherwise, why would they have bothered to create the Electoral College?

On the other hand, as Justice Kavanaugh observed, faithless electors arguably disenfranchise voters, jeopardizing a host of federal constitutional rights. The equal protection clause of the 14th Amendment, for instance, proved pivotal in Bush v. Gore as a mechanism of preventing "arbitrary and disparate treatment of the members of [Florida's] electorate."[16]

It would be theoretically possible for states to shore up restrictions on electors prior to Dec. 8, by which time states are required to designate their electors pursuant to federal statutory law.[17] But such measures are unlikely to be adopted at this stage in the race in any state with partisan splits among chambers in the state legislature or between the state legislature and the executive branch.

It may well be that the most practical way to avoid a scenario involving faithless electors — and the potential legal challenges that could ensue — is to take great care in choosing electors. The timing and methodology for selecting electors is left to the states and their political parties, and some states have statutory deadlines to select electors that have passed. For instance, in Massachusetts, both parties were required to select their electors in September.[18] 

For states that lack strong controls on their electors, relying on the judiciary to determine the fates of outcome-changing Electoral College votes cast by faithless electors is a risky proposition.

Simon Cataldo is a partner at the Ashcroft Law Firm and a former federal prosecutor in the U.S. Department of Justice's Public Integrity Section.

Cory Liu is a partner at Ashcroft and a former assistant general counsel to Texas Gov. Greg Abbott.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Id. at 2320. 

[2] Id. at 2322. 

[3] Id. 

[4] U.S. Const. amend. XII.

[5] Id. 

[6] Id. 

[7] Id. 

[8] Id. at 2323.  Shortly thereafter, the U.S. Court of Appeals for the Tenth Circuit determined that a state could not remove a faithless elector.

[9] Id. at 2329. 

[10] Id. 

[11] Id. at 2329.

[12] Id.

[13] Id. at 2322 n.2. 

[14] Id. 2323 (quotation marks omitted). 

[15] https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/19-465_c0n2.pdf.

[16] Bush v. Gore, 531 U.S. 98, 105 (2000).

[17] 3 U.S.C. § 1.

[18] Mass. Gen. L. ch. 53, §8.

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