The Vexing Problem of Faithless Electors

If the aftermath of the unprecedented lobbying campaign attempting to convince the presidential electors to change the outcome of the 2016 presidential election and deny Donald Trump the White House, legal cases arose challenging the authority of the states to sanction or replace presidential electors who broke their pledges to cast their votes for the party nominee who won the statewide balloting in the general election. Colorado claimed the right to discard the ballots of faithless electors and replace those electors with an alternate who would adhere to their pledge. Washington state claimed the right to impose a civil fine on faithless electors who broke their pledge. The authority of the states to discourage faithless electors had not previously been tested, and in the consolidated cases of Chiafalo v. Washington and Colorado Department of State v. Baca the Court upheld the authority of the states to take such actions to enforce the pledges of presidential electors. The greatest risk raised by the faithless elector cases was the possibility that the justices might throw a monkey wrench into the electoral machinery. They could have made it somewhat more likely that Hamilton Elector-style lobbying campaigns will become regular features of our electoral process, and as a result made it marginally more likely that the country might eventually face the constitutional crisis of the Electoral College denying victory to the declared winner of Election Day. The justices in 2020 instead took care to not further unsettle the political system. In doing so, they did not – and could not – put an end to the possibility that a faithless elector might someday swing an election result, but they did what they could to make sure that such an event was no more likely than it was before they heard the cases. They endorsed the status quo ante, and left it to politicians to take measures that would minimize the prospect and impact of faithless electors. This essay reviews the faithless elector problem and how the Court tried to resolve it. Part I reviews the design of the Electoral College, the problem of faithless electors, and the ways we have tried to contain that problem. Part II notes how this problem of faithless electors reached the Supreme Court. Part III examines the strategy Justice Elena Kagan adopted in the majority opinion for empowering states to discipline presidential electors. Part IV examines the alternative strategy offered by Justice Clarence Thomas in his concurring opinion. Part V considers some implications of the Court’s action in these cases for related controversies.