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Removing ‘Faithless’ Presidential Electors Is Unconstitutional

Removing ‘Faithless’ Presidential Electors Is Unconstitutional

This article originally appeared in the Daily Caller.

A 2016 Colorado Democratic presidential elector who pledged to vote for Hillary Clinton is suing because the state removed him from his position after he voted for Ohio Gov. John Kasich instead. He joins two other electors with somewhat similar claims.

The three electors argue the Constitution bans states from dictating how they vote. They are represented by Lawrence Lessig, a Harvard law professor of wide interests and abilities.

According to the original meaning of the Constitution, Lessig and his three clients are correct. Article II, Section 1, Clause 2 and the 12th Amendment—which together govern presidential elections—grant electors, not the states, authority to vote for president and vice president. Colorado’s effort to punish them for voting “wrong” is unconstitutional.

Article II, Section 1, Clause 2 provides, “Each state shall appoint [Electors], in such Manner as the Legislature thereof may direct …” Note that the appointment is by the state itself rather than by any branch of the state.

How the appointment is carried out (“in such Manner”) is determined by the state legislature. The record from the Founding era tells us that in this instance, “legislature” means the state’s general lawmaking apparatus, including the governor’s bill-signing function. The Constitution assigns some responsibilities to state legislatures acting alone, but fixing the manner of appointing presidential electors is not among them.

In other words, aside from the Constitution’s grant to Congress of power to fix a uniform presidential election day, the “Manner” by which a state appoints presidential electors is prescribed by state election laws. All states have passed laws authorizing the people of the state to vote for electors directly. (It’s worth mentioning that, for reasons too complicated to discuss here, a 1934 Supreme Court decision holding that Congress also has broad power over presidential elections was erroneous.)

What does this “manner of appointment” include? May a state impose pledges on candidates for elector? May a state punish those who break their pledges? May it remove an elector who votes the “wrong” way and substitute another who votes “right?”

Although the Supreme Court has upheld pledges, I doubt whether the Constitution authorizes states to do any of these things. A great deal of Founding-era evidence tells us that in this context “Manner” includes only the basic mechanics of selection: registration lists, voting districts, necessary margin of victory, and the like. The evidence does not suggest that “Manner” of selection encompasses how a successful candidate acts after selection.

Several facts reinforce this conclusion. First, the 12th Amendment provides, “The Electors shall … vote by ballot for President and Vice-President …” Electors vote—not a state puppet master. As the Supreme Court has recognized in cases involving constitutional amendments, when the Constitution grants a function to a convention or legislature, it means the convention or legislature, not some outside coercing agency.

If the Constitution allowed state authorities to dictate their state’s presidential votes, then why did it require the states to appoint flesh-and-blood electors?

Electors are to vote “by ballot.” In Founding-era language, that means secret ballot. But a state’s preferences generally will be public information. If the electors have nothing to decide, then why did the Constitution require a secret ballot?

As if all this were not enough, the Founders were explicit: Once chosen, presidential electors make their own decisions. In Federalist No. 67, for example, Alexander Hamilton wrote of the Electoral College:

[T]he immediate election should be made by men most capable of analyzing the qualities adapted to the [president’s] station, and acting under circumstances favourable to deliberation, and to a judicious combination of all the reasons and inducements that were proper to govern their choice. A small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.

Of course, a candidate running for presidential elector has every right to tell the voters how he or she expects to cast his or her ballot. But for better or worse the Constitution does not authorize the state to punish an elector if, in the exercise of discretion, he decides to change his mind.

Electoral College: Answers to Questions

Electoral College: Answers to Questions

Here are answers to some questions I’ve gotten about the Electoral College since Election Day:

Q. What is the Electoral College?

A. It’s not an educational institution! The term “college” is a typical 18th century latinate usage, based on the Latin word “collegium,” meaning a club or guild. (This another example of why knowledge of Latin is so important to constitutional studies.) The “Electoral College” is a collective phrase for all presidential electors. The “college” never actually meets in one place. To avoid mob behavior and undue special interest influence, the Constitution requires that each state’s electors convene in their state capital and vote there.

Q. Where does the Electoral College get its power?

A. From the American people, acting through the Constitution. This is one of a number of cases in which the Constitution delegates special functions to persons or entities not part of the federal government or not acting in their usual governmental capacities. In addition to delegating presidential election to the Electoral College, the Constitution grants special powers and duties to state legislatures, state governors, conventions, individual houses of Congress, and so forth.

Q. Who chooses the Electoral College members?

A. Each state legislature determines how that state’s electors are chosen. Since about 1860, all state legislatures have delegated the authority to the voters. That could be changed, however. For example, if the Supreme Court had not stopped the Florida “Bush vs. Gore” recount in 2000, the Florida state legislature could have appointed its own electors. Because the Florida legislature was Republican, there really was no uncertainty about how the national election would turn out. The widespread belief that the election results were unknown was partly a product of constitutional and political ignorance, partly media spin, and partly political manipulation.

Q. How is the number of members of the Electoral College calculated?

Electoral College 2016A. The Constitution specifies that the District of Columbia gets the same number as the smallest state (now three) and that each state gets as many electors as it has both Senators and Representatives.

Q Where did the Electoral College number come from?

A. The District of Columbia received its right to choose electors from the 23th Amendment. The “Senator + Representative” formula is a survival of early proposals in the Constitutional Convention that the president be elected by a joint session of both houses of Congress.

Q. What is the role of the House of Representatives in presidential elections?

A. If no candidate wins a majority of the electoral vote, the outgoing (lameduck) House chooses the next president from among the top three candidates. In doing so, the House votes by state—that is, each state delegation gets one vote, and a majority of states is necessary to elect. In 2000 (as now) the House was Republican, both per capita and by state delegation—which was another reason the so-called uncertainty that year was illusory.

Q. May the Electoral College vote for anyone they wish?

A. Yes. State laws bind many electors, but the constitutionality of those laws is questionable. Even if they are valid, state laws can’t stop an elector from voting as he wishes. They can only punish him after the fact.

Q. Do you favor adopting direct popular election for the president and vice president?

A. At one time I did, but I’ve been persuaded that direct popular election would be impractical, and probably would increase greatly the chances of election fraud. In close races, it would necessitate a national recount. In 2000, the recount was limited to Florida, but under a popular vote system it would have been national. That could have created uncertainty lasting many months, possibly leading to constitutional crisis.

Q. Any other reasons to keep the Electoral College?

A. Yes. People think the country is divided now—but direct popular election could make the situation much worse. It would encourage regional candidates and encourage national candidates to focus on running up big totals in some regions rather than working to attract truly national support. Such a development could even raise the chances of civil war.

Q. Civil war? Come on! Really?

A. Yes. Under the Electoral College system a purely regional candidate has won only once. That was in 1860. Election of a candidate supported only by one section and widely loathed elsewhere led directly to civil war. (Note: I am NOT saying Lincoln shouldn’t have been elected.)

Q. Are there any other reasons for supporting the Electoral College?

A. The fact that the Electoral College votes about five weeks or so after the popular election provides Americans with a “second look.” If in the interim the apparent winner dies or becomes incapacitated, or new information surfaces that radically changes the previously-assumed facts, then the electors may choose someone else.

Q. Who regulates the presidential election and specifically the choice of the Electoral College?

A. In recent decades, Congress has adopted various measures to regulate the presidential election. The Supreme Court has upheld the power of Congress to regulate presidential elections, but it has never supported its position with serious constitutional analysis. Objectively considered, however, those measures are almost certainly unconstitutional. The Constitution and associated history are clear that the choice of each state’s presidential electors within the exclusive jurisdiction of the state legislatures.

Q. What is the practical result of electing a candidate who wins a majority in the Electoral College but not a majority of the popular vote?

A. A candidate may win a majority of the Electoral College while winning only a plurality of the popular vote (e.g., in 1992 and 1996) or while failing to win even a plurality (as in 2000 and 2016). In both situations, the candidate with a majority in the college is elected president, but the presidential election provides no popular mandate for any particular program (although accompanying elections for Congress may provide a mandate). This kind of election result means the new president must exercise great political skill during the coming term in office.

You have to qualify those statements if the reason the candidate didn’t win a majority or plurality was because other candidates politically closer to the winner than to the loser siphoned off support from the winner. A particularly dicey situation arises if a major candidate wins a popular plurality only because a third party candidate takes votes from the runner up (as in 1992).

Q. Currently there is a campaign to convince presidential electors supporting Donald Trump to switch to other candidates. Is that legitimate?

A. It’s technically legal, if that is what you mean. It is profoundly disturbing, however, because it seeks to interject into the Electoral College the kind of stampeding pressures the institution was created to avoid. It is further evidence that we have in our midst a large number of political activists who reject the very premises of American constitutional government.

More Founding-Era Evidence that Some State Functions Derive Only From the Constitution (With Some Comments on the Amendment Process)

More Founding-Era Evidence that Some State Functions Derive Only From the Constitution (With Some Comments on the Amendment Process)

In prior posts, I’ve discussed two key elements of constitutional law:

1. The Constitution grants some powers to persons and entities other than the federal government. These persons and entities include state legislatures, state governors, state conventions, the Article V “Convention for proposing Amendments,” Congress as a free-standing assembly, and the Electoral College.

2. When states, state governors, and state legislatures act under those powers they perform (in the words of the Supreme Court) “federal functions” granted them by the Constitution. They do not act by virtue of state powers reserved by the Tenth Amendment.

The courts have repeatedly vindicated both of these principles.

For example, the Constitution provides that “Each State shall appoint” presidential electors “in such Manner as the Legislature thereof may direct.” (II-1-2) Similarly, the Constitution grants to state governors authority to issue writs for House elections (I-2-4). It grants state legislatures authority to regulate congressional elections (I-4-1), to apply for an amendments convention and, under certain circumstances, to ratify a constitutional amendment. (Art. V).

All these powers derive from the Constitution. They were not “reserved by the states” when the Constitution was ratified. As the Supreme Court has pointed out, to be “reserved” a power must have existed prior to the Constitution, and all of these powers pre-suppose that the Constitution is already in existance.

This is why those who claim that a state can use its reserved authority to control the amendment process are simply mistaken. A state legislature has a good deal of control over that process, but only as much as is incidental to its Article V functions.

In fact, the concept that some state powers are delegated rather than reserved was understood even under the Articles of Confederation.

Under the Articles, the Confederation Congress created and oversaw the U.S. Post Office. On June 13, 1788 (when the Constitution’s ratification was not yet complete), Postmaster General Ebenezer Hazard sent Congress a letter describing a problem and asking for guidance.

Benjamin Franklin was then president (governor) of Pennsylvania. Apparently on the authority of his state office, Franklin ordered a letter in the custody of the U.S. Post Office to be opened and inspected. Hazard wanted to know whether Franklin had operated legally. He acknowledged that Congress had authorized state executives to open the mail during wartime, but in 1788 the United States was no longer at war.

Franklin could have made a reasonable case—a much better case, in fact, than that argued by those who claim the states have Tenth Amendment authority over the amendment process. This is because the Articles’ reserved powers clause was even stronger than the Tenth Amendment: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” Moreover, official letter-opening was a common practice during the 18th century. In fact, one reason governments created post offices and banned mail delivery by private parties was to enable governments to better monitor communications. Franklin knew all this: He had been a postmaster under both the Crown and under Congress.

Nevertheless, in a report issued on June 18, 1788 the investigative committee found that Franklin had exceeded his authority:

. . . Congress by the Confederation have the sole and exclusive power of regulating the post offices throughout the United States that no power can be exercised respecting the post office but what is delegated by Congress and that it does not appear that any such power has been hitherto delegated.

Because it had been asked about the advisability of delegating mail-opening authority to state governors, the committee added:

. . . [T[he power in question is of such a nature as not to be capable of being delegated with propriety to any persons except to some principal officer or officers immediately under the controul of and responsible to Congress.
Under these impressions and considering the present state of the Government of the United States the Committee are of opinion that it is inexpedient to delegate the power in question to the governors and presidents of the Several States.

34 J. Cont. Cong., p. 239.

Of course, one might quibble by observing that the post office provision in the Articles included the phrase “exclusive power” while the Constitution does not. But this would be a sophomoric objection: When the Constitution creates procedures for presidential election, amendment, and the like, those procedures are clearly intended to be exclusive, even where the precise word is not used. In absence of an authorizing amendment, attempting to use other procedures for, say, electing the president or amending the Constitution would certainly be unconstitutional.

The Constitution's Grants To Persons and Entities Outside the U.S. Government

The Constitution's Grants To Persons and Entities Outside the U.S. Government

041410 Rob Natelson-2

A little known aspect of our Constitution is that it delegates power, not just to the U.S. Government and to its units, but also to persons and entities outside the U.S. Government. In each case, the power to act is derived ultimately from the Constitution. Even when those persons or entities are states or officeholders of states, their authority derives from the Constitution rather than from the pool of authority retained by the states under the Tenth Amendment.

The Constitution’s delegations of power to actors outside the U.S. Government are surprisingly plentiful. The first listed in the Constitution is Article I, Section 2, Clause 1 [“I-2-1”], which implicitly authorizes each state to define qualifications for the U.S. Representatives from that state. The Seventeenth Amendment extended this authority to include U.S. Senators.

I-2-4 empowers (and directs) state governors to “issue Writs of Election” to fill vacancies in the House of Representatives.

The original Constitution (I-3-1) also delegated authority to each state “Legislature” to elect U.S. Senators. The word “Legislature” was meant literally: The delegation was to the state representative assembly. It was not to the general state legislative authority, which the assembly might share with the governor (through the veto) or the people (through initiative and referendum). In other words, election of Senators was not subject to the governor’s approval, nor could it be handed off to the people. In addition, I-3-2 empowered each governor to temporarily fill senate vacancies during a legislative recesses. This situation continued until the Seventeenth Amendment moved Senate elections to the voters at large. That amendment also conferred on state legislatures power to authorize the governor to make temporary appointments.

The Supreme Court has held that another grant to each state “Legislature” (I-4-1) actually is a grant to the broader legislative authority rather than merely to the state’s representative assembly alone. The Times, Places and Manner clause allows each state to regulate the “Manner of holding Elections for Senators and Representatives.” Because the grant is to the general legislative authority rather than to elected assembly, the governor can veto such regulations, and the people can make them through the initiative process or approve or reject them through referendum, if the state constitution so provides.

The Constitution further bestowed on state legislatures a veto over congressional acquisitions under the Enclave Clause (I-8-17) and over proposed state divisions and combinations (IV-3-1).

Article II, Section 1 empowers “Each State” to choose the method of selecting presidential electors from that state. The same section, coupled with the Twelfth Amendment, authorizes the electors to choose the President. Again, both powers derive from the Constitution, not from those retained under the Tenth Amendment.

The Guarantee Clause (Article IV, Section 4) grants state legislatures the legal capacity to compel the federal government to protect them against “domestic Violence,” and it gives like capacity to state governors when the legislature cannot be convened.

Article V, which governs the amendment process, grants power to four kinds of assemblies: Congress, state legislatures, state conventions, and a federal convention to propose amendments. The courts tell us that in Article V matters, these assemblies act independently, and not as branches of any government.

Article VI empowers, and directs, state judges to apply the Constitution as the “Supreme Law of the Land.”

When an entity outside the government exercises authority conferred by the Constitution, the Supreme Court says it exercises a “federal function.” However, the Court also has made clear that exercising a federal function does not convert an independent entity into a part of the U.S. government.

One interesting implication of these grants, as I noted in an earlier posting, is that they fall outside the incidental federal legislative power defined in the Necessary and Proper Clause. This is because the Necessary and Proper Clause generally excludes laws not directed to the federal government or to “Departments” and “Officers” of that government.

Apparently in recognition of this, the framers provided for several compensating grants to the federal legislature (i.e., Congress-subject-to-presidential-veto). The Times, Places and Manner Clause permits Congress to regulate, to a certain extent, a governor’s writ of election and to overrule most state regulations of congressional elections. (I-4-1). Moreover, even though states are primarily responsible for selecting presidential electors, Congress may dictate “the time of chusing the Electors, and the Day on which they shall give their Votes.” (II-1-4). And in the amendment process, Congress calls the convention and chooses among two modes of ratification.