Chiafalo v. Washington

ELECTOR INDEPENDENCE UNDER ARTICLE II

Chiafalo argues that Article II of the Constitution envisioned a system where presidential electors were independent and exercised discretion when they voted for the president. Brief for Petitioners, Presidential Electors at 19. Chiafalo asserts that the plain meaning of Article II conveys this vision by declaring that each state shall appoint Electors who vote by ballot. Id. Chiafalo first claims that the power to “appoint” does not ordinarily include the power to control or remove the appointee. Id. at 19–20. To demonstrate this point, Chiafalo discusses the President’s power to appoint federal judges but his inability to remove or sanction them. Id. at 20. While Chiafalo concedes that the President’s power to appoint his subordinates also includes the ability to remove them, he maintains that the President’s removal power over his subordinates comes not through the appointment power, but derives from Article II’s Take Care Clause, which requires the president to ensure that the laws are faithfully executed, and the Vesting Clause, which vests the president with the executive power. Id. at 23.

Chiafalo further argues that the Framers vested “electors,” as opposed to “agents” or “delegates,” with the right to select the President because the term “elector” describes an individual who exercises discretion and does not act on behalf of someone else. Id. at 24. Chiafalo also contends that the use of the word “vote” implies that electors are meant to independently choose the President. Id. at 27. To bolster this assertion, Chiafalo claims that the Supreme Court has often similarly linked voting with a voter’s independent choice. Id. at 28. Lastly, Chiafalo argues that Article II requires electors to vote by ballot, a system where, since the time of the Founding, votes are privately placed in a box and then counted only after everyone has voted. Id. at 29. Chiafalo contends that the use of this system clearly shows that electors were meant to vote independently. Id. at 30–31.

The State of Washington (“Washington”) counters that Article II does not limit a state’s ability to impose conditions on electors. Brief for Respondent, State of Washington at 22. Washington argues that the “default rule” is that the power to appoint incorporates removal power. Id. While it concedes that the Constitution can limit an entity’s removal power, Washington asserts that the Constitution never expressly limits the states’ authority to remove their electors. Id. at 22­–23. Moreover, Washington contends that the power to remove also includes the power to control and impose conditions. Id. at 31.

Washington next counters Chiafalo’s other textual arguments, claiming that Chiafalo took the words “electors,” “vote,” and “by ballot” out of context to support his argument. Id. at 34. Washington first argues that simply because an “elector” has a right to “vote” does not automatically mean that a state cannot place conditions or restrictions on the elector’s vote. Id. at 35. Washington asserts that sometimes the right to vote may only provide one real option, for instance where there is only one candidate running for a position. Id. Washington also adds that individuals often relinquish their vote to someone else and simply vote as their proxy. Id. Therefore, Washington argues that just because Article II uses the words “elector” and “vote” does not automatically imply that a presidential elector has “unfettered discretion” with that vote. Id. Washington also claims that a ballot system does not automatically confer unrestricted discretion on presidential electors as the nation’s very first elections used a ballot that did not provide for any electoral discretion. Id. at 37–38. Washington asserts that at these early elections many state ballots merely required electors to sign prepared forms with designated political candidates. Id. at 38. Washington therefore contends that Chiafalo is incorrect to claim the text of Article II requires electoral discretion. Id. at 38.

THE TWELFTH AMENDMENT

Chiafalo argues that the Twelfth Amendment, which was ratified in 1804 and changed the procedure for choosing the President and the Vice President, did not transform the electors’ role in the presidential process and continued to provide them with a discretionary vote. Brief for Petitioners at 32. Prior to the Twelfth Amendment’s adoption, Chiafalo claims that dozens of electors casted “faithless” votes, or discretionary votes. Id. at 32–36. Chiafalo claims that the Twelfth Amendment merely changed the voting process; electors would now vote separately for the President and the Vice President as opposed to awarding the Presidency to the candidate with the most votes and the Vice Presidency to the candidate with the second-to-most votes. Id. at 32.

Chiafalo contends that had the drafters of the Amendment been unsatisfied with the dozens of faithless electoral votes in the previous elections, they would have reflected that dissatisfaction in the Amendment. Id. at 36–37. Further supporting the assertion that states do not have control over their electors, Chiafalo argues that the Twelfth Amendment explicitly excludes state officials from the electoral voting process. Id. at 37.

Washington counters that when the Twelfth Amendment was adopted, it was understood that electors were supposed to vote in line with the public’s choice. Brief for Respondent at 26. Washington argues that the Twelfth Amendment intended to prevent rogue electors from swinging the outcome of an election and electing a president against the public will. Id. at 26–27. Specifically, Washington contends that Congress added the Amendment out of concern that one party’s electors would undermine the opposing party’s campaign and vote for the opposing party’s vice-presidential nominee to make them president. Id. Washington argues that when Congress added the Amendment, it was fully aware that electoral voting was a “mere formality” and had no issue with it. Id. at 28. Had there been a problem, Washington contends that Congress would have addressed it in the Amendment. Id.

Additionally, Washington contends that Chiafalo incorrectly argues that the Twelfth Amendment implicitly approves faithless voting because the Amendment did not expressly prohibit it. Id. at 30. Washington asserts that the true question of the case is whether “the Constitution prohibits States from binding electors,” not whether the Constitution requires electors to follow the public will. Id. On that note, Washington maintains that, prior to 1804, states had been appointing electors who pledged to vote for a particular candidate. Id. Washington therefore claims that Congress felt no need, through the Twelfth Amendment, to explicitly allow state control over electors since the states were already doing so. Id. at 31. Washington concludes that Congress also did not prohibit faithless electing because they left it up to the states to make that choice for themselves. Id.

OTHER CONSTITUTIONAL CONSTRAINTS

Chiafalo next argues that the Supremacy Clause, which provides that the Constitution and federal law are the “supreme law of the land” and take priority over conflicting state laws, prevents states from imposing conditions on presidential electors because they perform a “federal function.” Brief for Petitioners at 38. Chiafalo asserts that the Supreme Court has long viewed presidential electors as performing a federal function. Id. at 39. Therefore, Chiafalo claims, the Supremacy Clause prevents states from controlling individuals performing a federal function, even if the individuals performing the function, like the presidential electors in this case, were appointed under state law. Id. at 40–41. Chiafalo also asserts that states cannot indirectly control the electors by imposing legal conditions that burden the performance of their job. Id. at 42. Finally, Chiafalo argues that the public’s expectations today cannot amend the original constitutional entitlement to elector independence that the Framers sought to construe. Id. at 49. While Chiafalo concedes that the public views electors as delegates, the Constitution gives electors the right to their independent vote, a right that cannot be abridged absent a constitutional amendment. Id. at 49–50.

Washington counters that the federal function doctrine, which prevents states from controlling individuals acting pursuant to a federal mandate, does not prevent states from controlling their electors’ votes. Brief for Respondent at 48. Washington first argues that Chiafalo misinterprets the two cases it relies on to make its federal function argument, Burroughs v. United States and Ray v. Blair. Id. at 48–49. Washington claims that both cases referred to the presidential electors’ role as a federal function “in passing,” while instead envisioning the states as ultimately controlling the electors. Id. at 49–50. Additionally, Washington claims that the federal function doctrine only applies in cases where state control would obstruct the functioning of the federal government. Id. at 51. But Washington asserts that state control of the electors would not obstruct the Government because the federal government does not vote for the President. Id.

HISTORICAL RECORD AND PRECEDENT

Chiafalo argues that the historical record demonstrates the longstanding principle of elector independence. Brief for Petitioners at 46. First, Chiafalo claims that throughout the nation’s history there have been 180 faithless votes; on the sole occasion where someone challenged a faithless vote, Congress held the vote to be valid under the principle of elector independence. Id. at 46–47. Chiafalo next argues that the Supreme Court’s holding in Ray v. Blair demonstrates that while states have the right to require presidential electors to pledge to vote faithfully, that pledge has no legal effect and is unenforceable. Id. at 48. Chiafalo contends that in Ray the Court explicitly stated that compelling a presidential elector to vote a particular way in the Electoral College might violate his or her constitutional rights. Id.

Washington counters that the historical record and precedent dictate that presidential electors cannot vote faithlessly. Brief for Respondent at 38–39. Washington claims that the Supreme Court has always viewed the presidential electors’ role as merely transmitting the people’s vote. Id. at 39–40. While Washington concedes that Ray holds that states can only require electors to pledge to vote in line with the public’s choice, it argues that states must then be able to enforce that pledge. Id. at 40–41. Washington argues that the historical record shows that states can bind their presidential electors. Id. at 45. Washington claims that presidential electors have voted according to their pledges and the public will since the very first election. Id. While Washington concedes that faithless electors have appeared in various elections, those instances pale in comparison to the tens of thousands of electors who voted in line with the public’s will, and those faithless votes had no right to ignore their voter’s intentions. Id. at 46–48.