The Court considers a constitutional fight over faithless electors

The case of the "faithless electors" at the Supreme Court this week sounds like a Sherlock Holmes mystery. In reality, it is a constitutional puzzle. How the Justices solve it could affect our election of the next president.

On Wednesday, the last day of their telephonic arguments, the Court will examine the constitutionality of two states' laws that remove or impose fines on presidential electors who fail to vote in the Electoral College for the candidate who won their state's majority vote. The cases, which will be argued separately, are Chiafalo v. Washington and Colorado Dept. of State v. Baca.

Two constitutional provisions are at the heart of this controversy: Article II and the 12th Amendment.

Article II, Section 1 provides that “[e]ach 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 12th Amendment states in part: "The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots, the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States."

Thirty-two states and the District of Columbia require electors to vote according to their pledges. Seventeen states and D.C. do not provide a penalty or mechanism to prevent the "faithless" vote from counting as cast. Four states provide a penalty of some sort, and 11 states provide for the vote to be canceled and the elector replaced (two states do both).

In the 2016 presidential election, the state of Washington had 12 Democratic electors, including Peter Chiafalo. Hillary Clinton and Tim Kaine won the popular vote in the state and the electors were to vote for them as required by their pledge. But Chiafalo and two others cast their votes for former Secretary of State Colin Powell for president and others for vice president.

Washington's secretary of state fined Chiafalo and the other two electors $1,000 each for violating the law. The electors, in turn, challenged the law, arguing that the state law violated the Constitution's Article II and their 12th Amendment rights. The Washington Supreme Court ultimately upheld the fines, ruling that nothing in the Constitution "suggests that electors have discretion to cast their votes without limitation or restriction by the state legislature.” The state's power to appoint electors, according to the court, was broad enough to include the power to "impose a fine" for their failure to uphold their pledge.

Switch now to Colorado where Micheal Baca, Polly Baca, and Robert Nemanich were three of nine Democratic electors. Clinton and Kaine again carried the popular vote. Micheal Baca, however, crossed out Clinton's name and wrote in John Kasich. He was removed as an elector and replaced by a substitute who voted for Clinton. The other two electors did cast their votes for Clinton and Kaine but joined Baca in challenging the state law as a violation of Article II and the 12th Amendment.

This time, the Colorado electors prevailed. The U.S. Court of Appeals for the Tenth Circuit ruled that “Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion.”

In the U.S. Supreme Court, the battle between the states and these electors is joined over the Constitution's text and history. The faithless electors argue that Alexander Hamilton, in explaining the design of the Electoral College said states would appoint electors who would be “most capable of analyzing the qualities” needed for a great president because the electors would be “most likely to possess the information and discernment requisite to such complicated investigations.” They would be “detached” from “cabal, intrigue, and corruption,” as they performed their sole purpose: to select the President and Vice- President of the United States. All of this supports the discretion and independence of electors, they contend.

As Article II provides, these electors add, states have the power to "appoint" electors who then vote "by ballot." Those terms taken together reveal the independence of electors, they argue. Voting is an act of discretion. And the power to appoint, without more, is not a power to control, they add.

The states counter that the Framers of the Constitution used the word "appoint" to "convey the broadest power of determination." They argue that during the Constitutional Convention, "no delegate argued that electors should be free to ignore the will of their appointing States. From the very first presidential election in 1788, electors promised to vote for particular candidates and voters supported them on that premise."

And by the time the 12th Amendment was adopted in 1804, creating the current Electoral College, the states add, the role of electors was understood to be “simply to register the will of the” State.

"Less than one percent have ever been faithless, and before 2016, no elector had ever broken a pledge in a State with laws penalizing such conduct," the states tell the Justices.

But has the Supreme Court said anything about this dispute? The states rely on an 1890 high court decision that said the “sole function of the presidential electors is to cast, certify, and transmit the vote of the state for president." And a 1952 decision, they argue, rejected the argument that “the Twelfth Amendment demands absolute freedom for the elector to vote his own choice."

Not surprisingly, the challengers disagree with the states' interpretations of those old Supreme Court decisions. Electors perform a "federal function," according to that 1952 decision, the challengers argue. States have the power to appoint electors, but have no power over a federal function, they contend.

This constitutional fight over text, history, and original understanding seems tailor-made for the "originalists" among the Justices—Clarence Thomas and Neil Gorsuch, and, to a lesser degree, Brett Kavanaugh. But as Justice Elena Kagan said after the death of the Supreme Court's most famous originalist, Justice Antonin Scalia, "We are all textualists now."

The arguments—and history lesson—start at 10 a.m.

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.