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Punishing 'Faithless' Electors: The Case Of Chiafalo Vs. Washington Of The US Supreme Court

Punishing Faithless Electors: The Case Of Chiafalo Vs. Washington Of The US Supreme Court
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In a significant development touching upon the voting behavior of presidential electors the American Supreme Court has come down heavily on 'faithless' electors of the electoral college which elects the American President. The American President, like the Indian President, is not directly elected by the people but is indirectly elected by electors of an electoral college constituted...

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In a significant development touching upon the voting behavior of presidential electors the American Supreme Court has come down heavily on 'faithless' electors of the electoral college which elects the American President. The American President, like the Indian President, is not directly elected by the people but is indirectly elected by electors of an electoral college constituted in terms of Article II section 1 of the US Constitution. The 2016 Presidential election in USA had witnessed a spate of faithless voting by some electors in few states. Such deviant voting behavior using personal discretion on the part of electors and voting independently, unfettered by the dictates of their parties as well as the popular mandate, had kicked in a constitutional controversy leading to filing of suits. The various State courts rendered conflicting judgments in these suits and there was need for the highest court to address the legal question and give the issue a quietus.

On 6th July 2020 the American Supreme Court therefore, took upon itself the onerous task of disciplining rogue, wayward and faithless electors of the Presidential Electoral College who vote against their party's nominees and the people's choice in the state. Bedeviled by a puritan judicial conscience and transcending all liberal and conservative ideological affiliations all the judges felt it imperative to allow the states the power to prevent repetition of the mischief of the 2016 presidential election in future by taking appropriate remedial measures as they may deem fit and proper. In a rare display of unanimity on a political question the American Supreme Court in the recent case of Chiafalo Vs. Washington (591 US - 2020) has held that a state is legally competent to Constitutionally put to effect and take punitive measures to enforce a Presidential elector's pledge to support his party's nominee and the choice of the state's voters for president.

In the facts of the case three Washington Electors, Peter Chiafalo, Levi Guerra, and Esther John (the Electors) belonging to the Democratic Party, in keeping with the legal requirements of the state law which had been upheld by the American Supreme Court in the year 1952 in the case of Ray Vs. Blair, 343 U.S. 214 (1952) had taken a pledge to support their party's candidates Hilary Clinton in the 2016 Presidential Election. However, violating their pledges to vote in favour of Hilary Clinton they voted otherwise. In response, the State of Washington fined the electors 1,000 $ each. Being aggrieved, the electors challenged their fines in the State Courts arguing that the Constitution gives members of the electoral college the right to vote in whatsoever manner they please. The Washington superior court rejected their claims. The State Supreme Court also repelled their further challenge and upheld the original judgment. These electors took the challenge further to the American Supreme Court.

The electors argued that the terms "appoint," "Electors," "vote," and "by Ballot" used in Article II section 1 of the US Constitution underlined the expectations of the framers to confer an unbridled constitutional right upon the electors to vote in terms of their own judgments. The electors further made a reference to the Federalist Papers no.68 of Hamilton wherein he had praised the Constitution for entrusting the Presidency to "men most capable of analyzing the qualities" needed for the office, who would make their choices "under circumstances favorable to deliberation." They had also submitted that John Jay too had predicted that the Electoral College would "be composed of the most enlightened and respectable citizens," whose choices would reflect "discretion and discernment."

Rejecting all such submissions and relying upon its earlier decision of the year 1952 in the case of Ray Vs. Blair, 343 U.S. 214 (1952) the court however, held that Article II section 1 of the US Constitution which gives the States the authority to appoint electors, ipso facto, includes the further powers to discipline and rein in such electors as an additional condition of their appointment as elector. The court held that there is no constitutional restraint in any other provisions of the constitution putting a fetter on the exercise of such a right by the appointing state. Article II section 1 of the constitution, in the court's view, confered the broadest power of determination over those who become electors. The relevant provisions of the Article relied upon by the court read as follows;- "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed;

Justice Elena Kagan delivered the opinion/judgement of the court in the following terms "But even assuming other Framers shared that outlook, it would not be enough. Whether by choice or accident, the Framers did not reduce their thoughts about electors' discretion to the printed page. All that they put down about the electors was what we have said: that the States would appoint them, and that they would meet and cast ballots to send to the Capitol. Those sparse instructions took no position on how independent from—or how faithful to—party and popular preferences the electors' votes should be. On that score, the Constitution left much to the future. And the future did not take long in coming. Almost immediately, presidential electors became trusty transmitters of other people's decisions."

The judgment/opinion further held that Courts and commentators throughout the 19th century recognized the electors as merely acting on other people's preferences. Making a reference to an earlier judgment of the court authored by Justice Story ( the youngest judge of the American Supreme Court till date) justice Kagan relied upon the same and quoted from the said judgment as follows;- "the electors are now chosen wholly with reference to particular candidates," having either "silently" or "publicly pledged" how they will vote. Nothing is left to the electors, he had continued, "but to register their votes, which are already pledged." Indeed, any "exercise of an independent judgment would be treated as a political usurpation, dishonourable to the individual, and a fraud upon his constituents." Similarly, justice Kagan noted that William Rawle had explained how the Electoral College functioned in the following terms: "The electors do not assemble in their several states for a free exercise of their own judgments, but for the purpose of electing" the nominee of "the predominant political party which has chosen those electors."

After taking stock of these earlier judicial pronouncements and observations the court speaking through justice Kagan held therefore, that …… "looking back at the close of the century, this Court had no doubt that Story's and Rawle's descriptions were right." The electors, the Court therefore, noted, were chosen "simply to register the will of the appointing power in respect of a particular candidate.

It was thus held that "the Electors' constitutional claim has neither text nor history on its side. Article II and the Twelfth Amendment give States broad power over electors, and give electors themselves no rights. Early in our history, States decided to tie electors to the presidential choices of others, whether legislatures or citizens. Except that legislatures no longer play a role, that practice has continued for more than 200 years. Among the devices States have long used to achieve their object are pledge laws, designed 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 ground 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."

In essence the majority opinion relied upon the provisions of Article II section 1 and the further fact that the bare bones of the Constitutional provisions, having acquired strength and sinews by consistent longstanding practice, and having become a settled healthy convention cannot be deviated from.

Interestingly, however, Justice Clarence Thomas, while concurring with the conclusions of the majority, expressly rejected the reasoning given therein. While the majority view relied upon the language of Article II Section 1 of the Constitution to bolster and fortify their conclusions, Justice Thomas dissented and held thus 'In short, the Constitution does not speak to States' power to require Presidential electors to vote for the candidates chosen by the people. The Court's attempt to ground such a power in Article II's text falls short. Rather than contort the language of both Article II and the state statute, I would acknowledge that the Constitution simply says nothing about the States' power in this regard.'

Having rejected the reasoning of the majority that the power to appoint an elector impliedly gives the states the power to prescribe any condition for such appointment such as pledge, oath or fine, Justice Thomas relied upon the Residuary Powers of the states (i.e. powers not enumerated in the constitution to the union) and held as follows "When the Constitution is silent, authority resides with the States or the people. This allocation of power is both embodied in the structure of our Constitution and expressly required by the Tenth Amendment. The application of this fundamental principle should guide our decision here."

Elaborating further on the scheme of allocation of powers under the US Constitution justice Thomas explained "This allocation of power is apparent in the structure of our Constitution. The Federal Government "is acknowledged by all to be one of enumerated powers. "The powers delegated by the . . . Constitution to the federal government are few and defined," while those that belong to the States "remain . . . numerous and indefinite." States face no such constraint because the Constitution does not delineate the powers of the States. Article I, section 10, contains a brief list of powers removed from the States, but States are otherwise "free to exercise all powers that the Constitution does not withhold from them."

Thus, in USA "where the Constitution is silent about the exercise of a particular power, that is, where the Constitution does not speak either expressly or by necessary implication," the power is "either delegated to the state government or retained by the people."

This fundamental allocation of power according to justice Thomas applies in the context of the electoral college. Article II, section 1, and the Twelfth Amendment address the election of the President through a body of electors. These sections of the Constitution provide the Federal Government with limited powers concerning the election, set various requirements for the electors, and impose an affirmative obligation on States to appoint electors.

Put simply, nothing in the text or structure of Article II and the Twelfth Amendment contradicts the fundamental distribution of power preserved by the Tenth Amendment.

The unanimous judgement/opinion of the court comes as a welcome relief at a time when the election of the American President by the Electoral College is on the anvil and is scheduled to be held on 14.12.2020

The Supreme Court in this judgment however, has not commented upon the merits or demerits of the present indirect election of the American President by the Electoral College. The debates for its substitution by a more democratic method continues even today. Modern critics, for example, the American Bar Association, have described the Electoral College "as archaic, complex, indirect and dangerous," Public interest in change has been spurred by several close elections where a shift of fewer than 10,000 votes in a state is sufficient to nullity 107 million deficit in the popular vote. The direct vote plan, whose principal sponsor was Democratic Senator Birch Bayh, attracted the most attention, but was defeated in the Senate. Under his plan, the President was to be elected by a direct popular vote on a nationwide basis. If no candidate received at least 40 per cent of the votes, "there would have been a runoff between the top two candidates."

In the final analysis, therefore, no one is really certain of the impact of abolition of the Electoral College of the American political system. For this reason, passage of any future amendments and their ultimate ratification by the States are doubtful. Both Congress and the States will be wary of change. American Constitution is a classic example of a rigid Constitution.

Views are personal.

(Jana Kalyan Das is a Senior Advocate at the Supreme Court of India, Sandeep Devashish Das & Ninad Dogra are practicing Lawyers)

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