Chiafalo v. Washington: Presidential Elections Are Messy Enough Already

July 12, 2020

Chiafalo v. Washington, 591 U.S. ___ (2020) (Kagan, J.).
Response by Adav Noti and Danny Li
Geo. Wash. L. Rev. On the Docket (Oct. Term 2019)
Slip Opinion | SCOTUSblog

Chiafalo v. Washington: Presidential Elections Are Messy Enough Already

As logistical and legal uncertainties over the 2020 presidential election mount, the Supreme Court’s decision this past week in Chiafalo v. Washington¹ provided a welcome respite. The Court unanimously held that states may remove or otherwise penalize “faithless electors”—presidential electors who vote for someone other than the presidential candidate who won the state’s popular vote.²

States, amici, and observers had warned the Court that ruling in favor of faithless electors would unleash electoral chaos, upending state and federal electoral systems and concentrating massive power in a small number of unaccountable and semi-anonymous individuals.³ Indeed, the avoidance of such upheaval was mentioned repeatedly by Justices during oral argument as a potential reason to rule in favor of the states.⁴

Yet interestingly, Justice Kagan’s opinion for eight Justices did not even explicitly mention—much less rely on—what Justice Kavanaugh had referred to as “the avoid chaos principle of judging.”⁵ In a case where the relevant constitutional language was sparse and ambiguous, why did the Court not invoke the seemingly uncontroversial idea that, all things being equal, it is better to have order than anarchy?

A close reading of the Court’s opinion indicates that the Justices did effectively invoke anti-chaos principles—stability, predictability, and reliance. But rather than do so explicitly, the Court presented these concerns as a matter of being guided by historical practice. Thus, the Court granted interpretive primacy to the maintenance of order, but in a way that on the surface looks like mere adherence to history, rather than a present-day aversion to upsetting the electoral apple cart just four months before Americans go to the polls.

By way of background, Chiafalo arose after three Washington electors were fined $1,000 apiece for violating their pledge to vote for Hillary Clinton—the winner of the popular vote in Washington state—in the 2016 presidential election. The electors challenged the penalty, arguing that the Constitution provides presidential electors discretion to vote as they wish, and the Washington Supreme Court ruled against them. The U.S. Supreme Court granted certiorari, likely because the Tenth Circuit had ruled in favor of faithless electors in a parallel case, creating an irresolvable split in authority.

The Supreme Court rejected the electors’ challenge to Washington’s pledge law on grounds that “[t]he Electors’ constitutional claim has neither text nor history on its side.”⁶

First, as to the constitutional text, Justice Kagan explained that Article II, § 1—which provides that states may appoint electors “in such Manner as the Legislature thereof may direct”⁷—“gives the States far-reaching authority over presidential electors.”⁸ This broad appointment authority includes the “power to condition his appointment—that is, to say what the elector must do for the appointment to take effect.”⁹ And that, the Court held, is exactly what Washington’s pledge law does: it conditions an elector’s appointment on their promise to carry out the public’s will by voting for the candidate who won the state’s popular vote.

The electors had argued that Article II’s designation of “electors,” put together with the Twelfth Amendment’s pronouncement that electors shall “vote” by “ballot,” meant that electors must have “freedom of choice.”¹⁰ The Court was unpersuaded, noting that “those words need not always connote independent choice.”¹¹ There is nothing textually inconsistent about saying that electors vote via ballot, and that electors should vote in accordance with the popular will.¹²

In any event, the Court held that any textual ambiguities had long been settled by historical practice. Indeed, the real meat of Justice Kagan’s opinion lies in its exposition of the centuries-old historical conventions that have limited the discretion of presidential electors. Citing James Madison, Justice Kagan explained that longstanding historical arrangements “can ‘liquidate & settle the meaning of’ disputed or indeterminate ‘terms & phrases.’”¹³ And it’s hard to find a more entrenched historical practice in American elections than presidential electors being faithful to their home states.

Recounting the history of presidential electors, Justice Kagan’s opinion observed that the so-called “electoral college” has long been understood “as a mechanism not for deliberation but for party-line voting.”¹⁴ “Courts and commentators throughout the 19th century,” Justice Kagan wrote, “recognized the electors as merely acting on other people’s preferences.”¹⁵ And as the mechanical role of the electors became a longstanding norm, laws “evolved to reinforce that development, ensuring that a State’s electors would vote the same way as its citizens.”¹⁶

This practice, of binding electors to the popular will, “has continued for more than 200 years.”¹⁷ Today, 32 states and the District of Columbia have elector pledge laws in place.¹⁸

Notably missing from the Court’s holding was any direct reference to the disastrous consequences that a contrary ruling would likely unleash.¹⁹ But those consequences nonetheless underlie the Court’s reasoning. Historical practice is important as an interpretative tool precisely because it often provides insight into what works.²⁰ And the history that Justice Kagan recounted is rife with detail about the democratic stability fostered by faithful electors. Since the Founding, electors “were understood to be instruments for expressing the will of those who selected them, not independent agents authorized to exercise their own judgment.”²¹ At the first contested election in 1796, “all but one elector did what everyone expected, faithfully representing their selectors’ choice of presidential candidate.”²²

Justice Kagan pointed out that state election laws adapted to reflect prevailing norms about the limited role of presidential electors. By the mid-1800s, “[s]tates listed only presidential candidates on the ballot, on the understanding that electors would do no more than vote for the winner.”²³ And in the early 1900s, states began enacting pledge laws.²⁴ These pledge laws, Justice Kagan explained, have long since been used “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 grounds 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.”²⁵

Thus, the Court’s opinion acknowledged that invalidating pledge laws would have seriously undemocratic consequences—specifically, the potential subversion of the popular will by faithless electors. The opinion quoted Justice Story, who described any “exercise of an independent judgment” on the part of presidential electors as “a political usurpation, dishonourable to the individual, and a fraud upon his constituents.”²⁶ The Court’s historical gloss essentially invoked a reliance interest,²⁷ acknowledging that our electoral system functions under the expectation that electors vote on the people’s behalf and therefore is totally unequipped for the chaos that likely would have resulted from unbinding electors.

The Court’s decision in Chiafalo is a timely reminder that our election system depends in large part on longstanding and deeply entrenched norms. And looking ahead to the November 2020 election, these norms are under threat in many other ways. The global coronavirus pandemic is placing enormous strain on our electoral infrastructure.²⁸ An increased reliance on mail-in voting means that vote counts will likely extend well past election night.²⁹ Meanwhile, candidates themselves are publicly casting doubt on the trustworthiness of very electoral system in which they compete.³⁰

In Chiafalo, the Supreme Court averted electoral chaos. This November, it may need do so again.

1. No. 19-465 (July 6, 2020).
2. Chiafalo, slip op. at 2. The Court heard oral argument separately in Colorado Department of State v. Baca, No. 19-518 (U.S. July 6, 2020), a similar constitutional challenge to Colorado’s pledge law, after Justice Sotomayor recused herself from the case. In an unsigned opinion, the Court upheld Colorado’s pledge law “for the reasons stated” in Justice Kagan’s Chiafalo decision. Baca, slip op. at 1.
3. See Brief for Petitioner at 50–51, Colo. Dep’t of State v. Baca, No. 19-518 (U.S. filed Apr. 1, 2020) (“Permitting the States to enforce those lawful pledges is not only constitutional but necessary to protect the true character of our Nation’s democratic principles and system of stable governance.”); Brief of Amici Curiae Campaign Legal Center and Issue One Supporting the States at 14, Chiafalo v. Wash., No. 19-465 & Colorado v. Baca, No. 19-518 (U.S. filed Apr. 8, 2020); Editorial Board, A Way for the Supreme Court to Avoid Chaos in November: Leave the Rule on Governing Electors to the States, Wash. Post (May 16, 2020, 8:00 AM), https://www.washingtonpost.com/opinions/how-the-supreme-court-should-clear-up-constitutional-ambiguity-around-faithless-electors/2020/05/15/ebca04cc-9547-11ea-9f5e-56d8239bf9ad_story.html; Noah Feldman, Appeals Court Opens the Door to Electoral College Chaos, Bloomberg Opinion (Aug. 25, 2019, 9:21 AM), https://www.bloomberg.com/opinion/articles/2019-08-25/electoral-college-chaos-is-possible-over-faithless-elector-ruling; Adav Noti, The Chaos Coming for the U.S. Election, Atlantic (Mar. 12, 2020), https://www.theatlantic.com/ideas/archive/2020/03/faithless-electors/607831/.
4. At oral argument, Justice Alito expressed concern that overturning pledge laws could “lead to chaos . . . where the popular vote is close,” because “the rational response of the losing political party . . . would . . . be to launch a massive campaign to try to influence electors, and there would be a long period of uncertainty about who the next President was going to be.” Transcript of Oral Argument at 21, Chiafalo v. Wash., No. 19-465 (May 13, 2020) (Alito, J.).
5. Id. at 33 (Kavanaugh, J.).
6. Chiafalo, slip op. at 17.
7. U.S. Const. art. II, §1, cl. 2.
8. Chiafalo, slip op. at 9. Justice Kagan qualified this power in a footnote, writing that ordinary constitutional constraints apply to a state’s power to appoint electors. Id. at 9 n.4 (“A State, for example, cannot select its electors in a way that violates the Equal Protection Clause. And if a State adopts a condition on its appointments that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause.”). Some commentators have argued that this footnote may invalidate laws that require candidates to publicly release their tax returns. See Rick Hasen, Analysis: Supreme Court Saves the Country from Potential Chaos by Ruling (Unanimously) that States May Replace or Punish “Faithless Electors”, Election L. Blog (July 6, 2020), https://electionlawblog.org/?p=112845 (“[I]n footnote 4 of the Court’s opinion, the Court casts serious doubt on laws that would require presidential candidates to submit tax returns as a condition to running for office.”).
9. Chiafalo, slip op. at 9.
10. Id. at 11 (quoting Brief for Petitioners at 11, Chiafalo v. Wash., No. 19-465 (U.S. July 6, 2020).
11. Id.
12. In a concurring opinion joined in part by Justice Neil Gorsuch, Justice Clarence Thomas argued that nothing in the text of the Constitution addresses whether states are permitted to bind presidential electors to their home-state popular vote. Justice Thomas accused the majority of “overreading” Article II, §1. Id. at 2 (Thomas, J. concurring). In the event of textual silence, Justice Thomas wrote that “authority resides with the States,” and ultimately agreed that state pledge laws are constitutional. Id. at 9.
13. Id. at 13 (Kagan, J.) (quoting Letter to S. Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908)).
14. Id. at 14.
15. Id. at 15.
16. Id. at 16.
17. Id. at 17.
18. Id. at 5.
19. The Court did refer to the electors’ argument that elector discretion is necessary in the event that a presidential candidate dies between Election Day and the Electoral College vote: “We do not dismiss how much turmoil such an event could cause. . . . [W]e note that because the situation is not before us, nothing in this opinion should be taken to permit the States to bind electors to a deceased candidate.” Id. at 17 n.8.
20. See, e.g., Samuel Issacharoff & Trevor Morrison, Constitution By Convention, Cal. L. Rev. (forthcoming 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3574803 (hypothesizing that courts often accord legal weight to institutional arrangements derived from historical practice out of “some kind of basic concern for practical workability and functionality”).
21. Chiafalo, slip op. at 14 (quoting Keith E. Whittington, Originalism, Constitutional Construction, and the Problem of Faithless Electors, 59 Ariz. L. Rev. 903, 911 (2017)).
22. Id.
23. Id. at 16.
24. Id. at 17.
25. Id. at 17–18.
26. Id. at 15 (quoting Joseph Story, 3 Commentaries on the Constitution of the United States § 1457 (1833).
27. See Curtis A. Bradley, Doing Gloss, 84 U. Chi. L. Rev. 67 (2017) (“[O]ver time both governmental actors and third parties (including, potentially, society at large) are likely to have adjusted their behavior to account for persistent practices, and that they may have made decisions and concessions based on this reliance.”).
28. See Pam Fessler, Coronavirus May Reshape Who Votes and How in the 2020 Election, NPR (Apr. 10, 2020, 5:00 AM), https://www.npr.org/2020/04/10/831059882/coronavirus-may-reshape-who-votes-and-how-in-the-2020-election.
29. See Miles Parks, The November, Election Night Could Stretch Into Election Week or Month, NPR (June 13, 2020, 7:01 AM), https://www.npr.org/2020/06/13/875811989/this-november-election-night-could-stretch-into-election-week-or-month.
30. See Maggie Haberman et al., Trump’s False Attacks on Voting by Mail Stir Broad Concern, N.Y. Times (June 24, 2020), https://www.nytimes.com/2020/06/24/us/politics/trump-vote-by-mail.html.

Recommended Citation Adav Noti & Danny Li, Response, Chiafalo v. Washington: Presidential Elections Are Messy Enough Already, Geo. Wash. L. Rev. On the Docket (July 12, 2020), https://www.gwlr.org/chiafalo-v-washington-presidential-elections-are-messy-enough-already/.