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Faithless Electors and the Electoral College: Chiafalo v. Washington

On July 6, 2020, the Supreme Court issued a unanimous ruling in Chiafalo v. Washington, which dealt with fines and punishments for faithless electors. The United States does not have a direct, popular vote for President. Rather, each state has a certain number of electors, and these electors make up the electoral college. Electors are chosen by each party in that state, and if that party’s candidate wins the state, they get those electors who cast their votes for the party’s candidate. Some states deal with electors in different ways, but in Wisconsin, it is a “winner take all” system. In 2016, Donald Trump won the most votes in Wisconsin, so Wisconsin’s elector spots were filled by the Republican Party. Often, parties will attempt to compel electors to vote for the party’s candidate. However, occasionally an elector will cast their vote for someone other than the party’s candidate. These are known as “faithless electors.”

In 2016, a couple of electors in Washington failed to vote for their party’s candidate. Because of this, they were fined $1,000 for being faithless electors. This fine was challenged by the electors, who argued that they should have the freedom to choose who to vote for. After looking at the Constitution and the history of the Electoral College, the Supreme Court disagreed:

The Electors’ constitutional claim has neither text nor history on its side. Article II and the Twelfth Amendment give States broad power over electors, and give electors themselves no rights. 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. That direction accords with the Constitution—as well as with the trust of a Nation that here, We the People rule.

Majority Opinion at 17-18.

While the decision was unanimous, there was one concurrence written by Justice Thomas, joined by Justice Gorsuch in part. Thomas wrote the concurrence to critique the reasoning of the majority:

The Court correctly determines that States have the power to require Presidential electors to vote for the candidate chosen by the people of the State. I disagree, however, with its attempt to base that power on Article II. In my view, the Constitution is silent on States’ authority to bind electors in voting. I would resolve this case by simply recognizing that “[a]ll powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State.” [citation omitted]

Thomas Concurrence at 1.

While faithless electors are not a rampant issue in this county, they could be the cause of major issues in what are already heated elections. The ability of states to control electors, and ensure that people’s votes are protected is crucial, and was affirmed in this decision.

Written by GLLF’s Legal Intern, Mike Pflughoeft