Zachary Reger1Zachary Reger is a staff member of The University of Chicago Law Review and a J.D. candidate in the University of Chicago Law School Class of 2022. He received his B.J. and B.A. in 2017 from the University of Missouri, where he majored in Journalism, Philosophy, and Film Studies.
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In the summer of 2020, the Supreme Court unanimously held that a state may, pursuant to state law, punish or remove its faithless presidential electors.2A “faithless” elector is one who casts her ballot for someone other than the winner of her state’s popular vote, whom she has pledged to support. This holding solidified state power while denying electors’ claims of a constitutional right to act as free agents. Thus, in the run-up to the 2020 presidential election, the Court dealt an institutional blow to the idea of an Electoral College that exists as an independently minded, deliberative body. Instead, the Court recognized the “long settled and established practice” of the College operating as a mere vessel for electoral politics.
Several commentators argued the Court’s holding had a secondary, perhaps unintended consequence: it boosted the case of advocates seeking to circumvent the Electoral College altogether. The National Popular Vote Interstate Compact (NPV) aims to establish a direct vote as the ultimate arbiter of presidential elections. The NPV effectively nullifies the Electoral College, not by constitutional amendment, but through a compact of states that control a majority of the electoral votes.
In the wake of the Court’s ruling on faithless electors, it seemed to many that the legal case for this interstate compact had never been stronger. However, the ramifications of the Court’s holding are more complicated. This new faithless elector jurisprudence could just as easily hurt as help the national popular vote movement.
I. The Faithless Elector Cases
In July 2020, the Court decided two landmark faithless elector cases together on identical grounds: Chiafalo v. Washington (2020) and Colorado Department of State v. Baca (2020). Both cases centered on challenges to state laws that authorized the punishment or removal of faithless electors. The Washington statute subjected each faithless elector to a $1,000 fine, while the Colorado statute required electors to vote for the state’s popular vote winner or be replaced. The Court held that each law represents a proper use of the states’ constitutional authority to determine the manner of appointing electors.
The faithless electors in question were motivated by the particular circumstances of the 2016 presidential election. If all electors voted for the respective winner of their state’s popular vote, Donald Trump would become president, despite winning fewer votes than Hillary Clinton nationwide. These particular faithless electors, in states won by Clinton, wanted to deny Trump an electoral majority. Rather than voting for Clinton, they cast their ballots for supposed compromise candidates in an effort to convince their red-state counterparts to do the same. Needless to say, this effort failed to change the outcome of the election.
The Court presents its reasoning for both cases in the Chiafalo majority opinion. It held the barebones constitutional provisions governing the Electoral College do not prohibit states from enforcing laws that punish or remove faithless electors.
The Electoral College is governed by two constitutional provisions: Article II, § 1, and the Twelfth Amendment. Article II, § 1, provides that each state shall appoint its presidential electors “in such Manner as the Legislature thereof may direct.” The following clause provides that the winner of a majority of electoral votes becomes president, while the runner-up becomes vice president. After the Constitution was ratified in 1788, this system quickly became problematic, as it tended to produce a president and vice president of opposing political parties. It also made it difficult for a single political party to run separate presidential and vice-presidential nominees. To solve this dilemma, the states in 1804 ratified the Twelfth Amendment, which provides that electors shall cast distinct ballots for president and vice president.
As the Chiafalo Court explained, neither Article II nor the Twelfth Amendment guarantees an elector’s discretion to vote for whomever she pleases, and Article II conveys “the broadest power of determination” over who becomes an elector. Additionally, the history of the Twelfth Amendment shows it was intended to further the role of the Electoral College as an instrument of party politics, not an independently minded body. Therefore, the Court concluded that, absent any provision to the contrary, the Constitution allows states to enforce laws that punish or remove faithless electors.
In a concurring opinion, Justice Clarence Thomas concluded that although states have the power to bind presidential electors to vote for the candidate chosen by the people of the state, this power does not arise from the language of Article II. Rather, the Constitution is silent on whether states have the authority to bind electors. Justice Thomas quoted his own dissent in U.S. Term Limits, Inc. v. Thornton (1995), stating that “where the Constitution is silent about the exercise of a particular power[,] the Federal Government lacks that power and the States enjoy it.” Therefore, under Justice Thomas’s reasoning, states may compel presidential electors to support the state popular vote.
Chiafalo affirmed state authority in a big way, holding that states may compel their presidential electors to vote for a specific candidate in at least some circumstances. But Chiafalo did not say how far that power extends. If the states can compel electors to vote for the state popular vote winner, what about compelling electors to vote for someone other than the state popular vote winner—such as, perhaps, the winner of the national popular vote?
II. The National Popular Vote Interstate Compact
That’s where the NPV comes in. The NPV is an interstate compact that aims to guarantee the winner of the national popular vote becomes president, regardless of who would have won a majority in the Electoral College on a state-by-state basis. Signatory states promise to bind their electoral delegations to support the national popular vote winner, notwithstanding the results of individual state elections. The compact only goes into effect if states totaling 270 electoral votes, a majority, have signed on. Currently, states totaling 196 electoral votes have approved the NPV.
Every state to approve the NPV so far can be characterized as Democratic-leaning, and there is little wonder as to why. In the last twenty years, only two presidents—George W. Bush in 2000 and Donald Trump in 2016—have managed to win election despite losing the national popular vote. Both are Republicans who defeated Democratic challengers. And even though Joe Biden ultimately beat Trump in the 2020 election, the Republicans enjoyed an even larger Electoral College advantage than they did in 2016. Although it is unclear how long this Republican advantage will persist, the NPV has nevertheless become a partisan political issue.
Proponents of the NPV reason that because the Constitution grants states broad power in appointing electors, the compact is a valid exercise of the states’ constitutional authority. They argue the constitutional mandate that states shall appoint electors “in such Manner as the Legislature thereof may direct” grants the states power to select electors pledged to a candidate other than the winner of the state popular vote. They also claim the NPV does not require congressional authorization under the Constitution’s Compact Clause, which provides that “[n]o state shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State,” because the NPV is not a “Compact” in the constitutional sense. Rather, under Virginia v. Tennessee (1893), a “Compact” must be “directed to the formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.” The NPV, proponents say, does not increase state political power nor interfere with federal authority, and thus does not require congressional authorization.3Of course, these propositions are debatable. But such an analysis is beyond the scope of this Essay.
III. Why Chiafalo Is Not a Slam Dunk for NPV Proponents
While Chiafalo has little to say about the Compact Clause, it would seem at first blush to bolster the NPV supporters’ argument that states may appoint electors pledged to the winner of the national popular vote. The Chiafalo Court held that “the power to appoint an elector (in any manner) includes power to condition his appointment—that is, to say what the elector must do for the appointment to take effect.” For example, “a State can insist . . . that the elector pledge to cast his Electoral College ballot for his party’s presidential nominee, thus tracking the State’s popular vote.” One could argue this power of appointment would similarly allow a state to insist its electors vote for the national popular vote winner.
However, Chiafalo falls short of guaranteeing the constitutionality of the NPV, and part of the Court’s reasoning cuts against the compact’s legal argument. Quoting The Pocket Veto Case (1929), the Court noted that “‘[l]ong settled and established practice’ may have ‘great weight in a proper interpretation of constitutional provisions.’” Quoting National Labor Relations Board v. Canning (2014), the Court argued that “our whole experience as a Nation” shows electors have rarely exercised discretion in casting their ballots for president, instead acting as mere instruments of the will of the voters who selected them.4According to the Chiafalo Court, across all U.S. presidential elections, electors have only cast some 180 faithless votes out of more than 23,000. Faithless electors have never decided a presidential election. The Court recognized the country’s entire history of presidential elections strongly supported an interpretation of the Constitution that granted states the power to compel electors to vote for their respective state popular-vote winners. But there is no long-standing practice of allowing states to compel electors to vote for someone other than the state popular-vote winner. On the contrary, the “[l]ong settled and established practice” is that electors are simply a means of state-based electoral representation. Their votes reflect the will of each individual state, as expressed by the voters of each state, in presidential contests.5The Chiafalo Court noted that almost every state, as well as the District of Columbia, routinely awards its electoral votes on a winner-take-all basis to the victor of the state popular vote. Nebraska and Maine are the sole exceptions. These states each award two electoral votes to the state popular-vote winner, then assign the remaining electoral votes to the top vote-getter in each congressional district.
Consequently, it is unclear if the Chiafalo Court’s reasoning would allow a state to bind its electors against the will of the state’s voters, as doing so would contravene settled expectations of electoral procedure. In the country’s early decades, not every state held popular presidential elections. Instead, many states resorted to direct appointment of presidential electors by the state legislature. The Jacksonian era of the early 1800s saw an expansion of popular presidential elections, which soon became the prevailing method of selecting electors. This trend never subsided—once the people achieved the ability to vote for presidential electors, the genie was out of the bottle. No state has appointed its electors since 1876, when Colorado became the final state to adopt popular presidential elections. In the last 145 years, there has been remarkably little change in how presidential electors are selected.
Current laws further illustrate the ossification of the Electoral College as a nondeliberative institution that transforms state-level elections into a national decision. As the Chiafalo Court noted, thirty-two states and the District of Columbia have laws prohibiting electors from violating the result of the state popular vote, and fifteen states back these laws with some kind of sanction. Even in the states that lack such laws, it is commonly understood that electors will vote for the state popular-vote winner. Allowing states to bind electors to support the winner of the national popular vote—as part of a first-of-its-kind interstate compact, no less—would belie this gradual but now settled process of constitutional liquidation. In other words, it may not be consistent with “our whole experience as a Nation.”
Further, Supreme Court jurisprudence has declared the “legislative power” is not the sole province of the state legislature but may also extend to the state’s voting population in certain circumstances. This is important context in assessing what it means for a presidential elector to contravene the will of her state. In Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), the Court concluded that the modern initiative process, through which a law or constitutional amendment is enacted by way of a statewide referendum, is one manner “in which the people of a State exercise legislative power coextensive with the authority of an institutional legislature.” Although a presidential election may not be “legislative” in this same sense, it is a similar expression of the will of a state. It is one thing for the Court to declare, as it did in Chiafalo, that a state may enforce a law compelling electors to support the will of the people of the state. It would be more constitutionally questionable for the Court to allow a state to enforce a law that would, in some cases, compel electors to deny the will of the people of that state.
Thus, Chiafalo is not quite as helpful to the NPV as some commentators have argued. While the Court’s ruling validated the existing practice of many states in punishing or removing faithless electors, it may not have expanded state authority in any meaningful way. The constitutionality of the NPV is as uncertain today as it was before Chiafalo.
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Zachary Reger is a staff member of The University of Chicago Law Review and a J.D. candidate in the University of Chicago Law School Class of 2022. He received his B.J. and B.A. in 2017 from the University of Missouri, where he majored in Journalism, Philosophy, and Film Studies.