Robert Bennett: Are Presidential Election Ballots Invalid?

The following is a guest post from Robert William Bennett of Northwestern Law:

            The United States Court of Appeals for the Tenth Circuit recently held unconstitutional a Colorado law that forbade the state’s presidential electors from voting “faithlessly.” Under the statute electors were required to take an oath to vote for the presidential (and vice-presidential) candidates who received the most votes in the state on “election day.” If at the state electoral college meeting about forty days later an elector violated that oath and voted “faithlessly,” under the state law he or she would be replaced, a substitute elector would be appointed, and that substitute would then take an oath and vote “faithfully” (or again be replaced).

            This problem of faithless electors is receiving more attention lately. There was an earlier (but recent) decision of the Supreme Court of Washington, upholding a fine of $1000 if an elector voted faithlessly. And the attention may be increasing, particularly because Colorado has filed a cert petition to challenge the Tenth Circuit decision in the United States Supreme Court.

            One problem with the Tenth Circuit’s decision has gotten no visible attention of which I am aware, viz. the validity of election day ballots across the nation if faithless elector voting is constitutionally protected. In a large number of states, those ballots make no mention whatsoever of a role for presidential electors. That was the case, for instance, in the Illinois ballot I cast in the last presidential election. And even in the states where the presidential portion refers to electors—or in some cases even includes the names of elector candidates—the reference is typically in fine print, as are any included names. Considerably more prominent are the names of the presidential (and vice-presidential) candidates of the political parties that also nominated the listed elector candidates. And in no states can an election day voter vote for some but not all of the political party’s candidates for elector. The elector selection is “winner-take-all” (except in Maine and Nebraska where separate counts are made in congressional districts for all but two of the state’s electors). This makes the election day “election” a sham if faithlessness is allowed forty days later, because election day voters have no idea what they are voting for. There is then an entirely plausible argument that the ballots are themselves unconstitutional.

            Nor is there any very plausible remedy. Conceivably eligible voters could file a lawsuit well before election day trying to force their states to revise the election rules and the ballots to make clear that the election is about electors, not executive office candidates. But even if successful that itself would likely be disruptive, because states do not want the election to be for electors rather than the “real” candidates. And the states might then hold separate elections—even on separate days for those “electors” and for any other state offices traditionally in play on election day.

             There is a much simpler solution to this dilemma of the misleading ballot, and that is to reject the Tenth Circuit’s reasoning and result, i.e. to require faithful elector voting in all states unless perhaps the state law explicitly allows faithless voting (which is very unlikely). The Supreme Court could do that if it grants the cert petition and then reverses the Tenth Circuit decision on the merits. But the Tenth Circuit’s opinion advances what it thinks of as originalist reasoning, reciting, inter alia, the eighteenth century “meaning” of various words in the presidential selection provisions of the Constitution. I do not think that that “originalist” reasoning is terribly persuasive, failing as it does to give weight to the monumental changes over the years in the ways the entire country thinks about the functioning of the electoral college—indeed how the constitutional draftsmen would in all likelihood think about the twenty-first century electoral college if they could be transported to the present day and educated about what had happened in the meantime. But there are several Justices on the United States Supreme Court who think of themselves as strict originalists and who might buy into that flawed constitutional interpretation.

            If the case does reach the Supreme Court, the Court must be made to appreciate that the Tenth Circuit decision cannot be accepted, because it would pose a serious challenge to the functioning of American government. This is actually for two related reasons. The first is that the Tenth Circuit decision invites a “presidential election” result from the electoral college that tells the country that the election day result announced to it forty days earlier was wrong, not because the election day count was wrong but because of “faithless” electors who refused to abide by that count. And the second is that the election day ballots deceptively led the voting public to believe that what those ballots told them was true.

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