By DAVID B. RIVKIN, JR. and ANDREW M. GROSSMAN
September 7, 2016, in the Wall Street Journal
To those counting the days until Nov. 8 when the presidential election campaign will finally end, some bad news: The contest won’t truly be decided until the Electoral College’s vote on Dec. 19. Then again, this could be good news for Americans who still hope to escape the dilemma presented by the major parties’ nomination of two unpopular candidates, Hillary Clinton and Donald Trump—but only if the electors’ constitutionally guaranteed independence is observed in the face of state laws seeking to control their votes.
America’s method of presidential selection is as peculiar and clever as the federalism and separation-of-powers principles that fostered it. To guard against the passions of populism, the Framers interposed a college of state-based electors between voters and the actual presidential selection. To discourage political obligation and intrigue, they provided that the electors would meet just once, in their respective states, for the sole purpose of casting ballots for the next president and vice president.
And to prevent the presidency from being captured by regional interests, they required the winner to obtain a majority of the Electoral College votes. Failing that, the election is thrown to the House of Representatives, to choose among the top three vote-getters.
Today, the Electoral College vote is regarded as a nearly mechanical process: The parties nominate their slates, elector seats are awarded (in most states) to the popular vote winner’s party slate, and a few weeks later the electors certify what the people have already chosen.
In an unusual campaign year like this one, however, that may be too much to take for granted. Electors are typically party stalwarts, but many ideologically committed Democrats and Republicans lack enthusiasm for this year’s top-of-ticket candidates. Several would-be Republican electors are already publicly flirting with the idea of casting their votes for someone other than Mr. Trump, believing that his erratic outbursts have “disqualified” him from being president.
Right or wrong, that is exactly the kind of discernment that the Constitution demands electors exercise. It was their duty, Alexander Hamilton explained, to ensure that “the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”
Instead, representing the interests of their states and constituents, the electors would vote only for those possessing “the esteem and confidence of the whole Union” sufficient to win the requisite majority vote, thereby providing “a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.” If the parties have failed in that task, then it falls to the electors to provide a final check.
Elector independence is also a practical necessity. Federal law provides no other means to respond to the death or incapacitation of the popular vote-winner after Election Day but before the Electoral College votes. Likewise, death or disability shortly before Election Day may present the same quandary, given state-law delays in altering ballots. And should electors blind themselves to revelations of corruption or foreign control that might emerge in the weeks before they meet? To deal with all of these contingencies, the Framers’ intention was that electors would exercise their discretion and judgment.
As a matter of original constitutional meaning, elector independence is not a controversial proposition. Both Article II of the Constitution and the 12th Amendment, which clarified the selection of the vice president, provide that electors shall “vote by ballot,” a term of art referring to secret ballots rather than publicly cast votes.
By contrast, other constitutional provisions use words like “choose” or “election” that do not indicate secrecy. Voting in secret is the means by which electors may exercise their discretion, free from any attempt to control their vote.
Nonetheless, 29 states and the District of Columbia have laws on the books purporting to bind electors to vote for their party’s candidate or in accord with the state’s popular vote. Some enforce those mandates with fines or even criminal penalties—typically a misdemeanor charge. Others regard the casting of a “faithless” elector vote as resignation from the post and cancellation of the ballot. Despite dozens of electors choosing over the years to cast ballots for someone other than their party’s candidate or to abstain, these laws have never been enforced. Nonetheless, their very existence misleads the public and, even worse, chills electors from discharging their duty to exercise judgment.
The time is ripe to put an end to this legal charade and establish, as federal-court precedent, that the Constitution forbids enforcement of elector-binding mandates. The Supreme Court ruled in a 1952 decision, Ray v. Blair , that delegate pledges are unobjectionable, as nothing prevents an elector from announcing his intended vote beforehand. But the court recognized that enforcement of pledges raises constitutional concerns.
State courts that have considered the matter have held that elector pledges can impose, in the words of the Supreme Court of Ohio in 1948, only “a moral obligation, not a legal one.” As that court concluded, when a state attempts to “dictate to the electors the choice which they must make for president and vice president, it has invaded the field set apart to the electors by the Constitution of the United States, and such action cannot stand.”
Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington, D.C. They represented Beau Correll, a delegate to the Republican National Convention, in his successful legal challenge to Virginia’s delegate-binding statute.