On July 9, 2020, the U.S. Supreme Court ruled in Chiafalo et al. v. Washington, __ US __ (2020)(No. 19-465) that the state’s electors to the Electoral College may be required follow their pledges as determined by state law. Otherwise, the state may use its authority to enforce penalties against the “faithless elector”, including invalidation of the vote, removal and substitution by an alternate elector, monetary fines and possible criminal prosecution.
As you may remember from high school civics class, Americans voting on Election Day are not actually voting for the president directly but rather are selecting members to the Electoral College. The Framers of the Constitution believed that the decision of selecting a president and vice-president was too important to leave to the general population, so they created an intermediary to make the selection instead. The state legislatures have broad freedom to determine who will be selected to cast that state’s electoral votes in the Electoral College. The number of votes a state has is determined by the number of senators and representatives sent to the U.S. Congress (Michigan has 16 electoral votes). The panel of electors sent is usually based on the political party of the presidential candidate carrying the popular vote there. For example, if a Republican candidate wins the popular vote in Michigan, then 16 electors are pledged to go to the Electoral College to vote for the Republican candidate. However, if a Democratic candidate wins the popular vote, then 16 different electors are pledged to go to the Electoral College to vote for the Democratic candidate. Although these electors may be pledged to vote in a certain manner, they may go rogue and vote for a different candidate instead. To combat this threat, most states have laws in place that penalize the faithless elector.
In this case, three electors from the State of Washington violated their pledges in the 2016 presidential election by voting for a different candidate. Hillary Clinton won the popular vote in that state so the Democratic Party slated a panel of electors that would vote for her in the Electoral College. Three of those electors voted for Colin Powell instead, in hopes of encouraging other electors to follow their example and change their pledge from voting for Donald Trump. While seven faithless electors total did vote against their pledges in the 2016 Electoral College, it was not enough to prevent Mr. Trump from becoming the 45th President of the United States. For breaking their pledge, the State of Washington fined each of the faithless electors $1,000.00 a piece per state law. The faithless electors filed suit against the State of Washington and argued that it was unconstitutional to impose any penalty for exercising their right to vote as they please. The state court upheld the sanctions, and the case eventually moved through the state and federal system to end up at the U.S. Supreme Court.
Article II, Section 1 of the U.S. Constitution 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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” The U.S. Supreme Court had already held in Ray v. Blair, 343 U.S. 214 (1952) that this constitutional provision does not prevent a state legislature from appointing only electors that are committed to voting for a party’s presidential candidate. The state can require the elector to take a pledge to support the nominee of a political party in the Electoral College, and the state can also refuse to qualify any elector that cannot or will not take such a pledge. 343 U.S. at 215-231. The phrase “in such Manner as the Legislature thereof may direct” should be interpreted to mean that state legislature have the broadest power of determination over who becomes an elector and can insist on who the elector must vote for. The elector does not have the “constitutional freedom” to vote for whoever he or she pleases. This is settled law.
The question before the U.S. Supreme Court in Chiafalo v. Washington is whether the state can impose penalties on these “faithless electors” who do not live up to these pledges? The answer is yes. Nothing in U.S. Constitution prevents the state from imposing penalties, and nothing in the U.S. Constitution confers any “rights” to the elector. The states are free to use devices to achieve the objective that electors are voting according to the popular vote results in that state which can include pledges, fines and invalidating the vote cast. The state’s power to enforce laws that punish faithless electors is affirmed.
In the 58 presidential elections that have occurred since the birth of the nation, 165 electors have not cast their votes for president or vice-president as prescribed or pledged by their state. However, no faithless electors have successfully changed the outcome of any presidential election to date in the United States. This does not mean that some national crisis could not emerge in the future if enough electors went rogue and voted against their state’s election results to cause an upset. The high court’s decision means that the individual states may implement legal penalties to keep this scenario from happening with their own electoral votes.
In Michigan, there are no criminal penalties or fines imposed if a faithless elector violates his or her pledge, but the vote will be not be counted and a new elector will be appointed to take his or her place. This legal mechanism prevents a faithless Michigan elector from having any practical effect on the outcome. MCL 168.47 provides the procedure for presidential electors in the state as follows:
- “The electors of president and vice-president shall convene in the senate chamber at the capitol of the state at 2 p.m., eastern standard time, on the first Monday after the second Wednesday in December following their election. At any time before receipt of the certificate of the governor or within 48 hours thereafter, an elector may resign by submitting his written and verified resignation to the governor. Failure to so resign signifies consent to serve and to cast his vote for the candidates for president and vice-president appearing on the Michigan ballot of the political party which nominated him. Refusal or failure to vote for the candidates for president and vice-president appearing on the Michigan ballot of the political party which nominated the elector constitutes a resignation from the office of elector, his vote shall not be recorded and the remaining electors shall forthwith fill the vacancy. The ballot used by the elector shall bear the name of the elector. If at the time of convening there is any vacancy caused by death, resignation, refusal or failure to vote, neglect to attend, or ineligibility of any person elected, or for any other cause, the qualified electors of president and vice-president shall proceed to fill such vacancy by ballot, by a plurality of votes. When all the electors appear and the vacancy shall be filled, they shall proceed to perform the duties of such electors, as required by the constitution and laws of the United States. If congress hereafter fixes a different day for such meeting, the electors shall meet and give their votes on the day designated by act of congress.”
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