Amicus Curiae Brief — Peter B. Chiafalo, Levi Jennet Guerra, and Esther Virginia John, Petitioners v. Washington
Supreme Court briefApr 8, 2020
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No. 19-518/No. 19-465
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------COLORADO DEPARTMENT OF STATE,
Petitioner,
v.
MICHEAL BACA, POLLY BACA AND
ROBERT NEMANICH,
Respondents.
---------------------------------♦--------------------------------PETER BRET CHIAFALO, LEVI JENNET GUERRA
AND ESTHER VIRGINIA JOHN,
Petitioners,
v.
STATE OF WASHINGTON,
Respondent.
---------------------------------♦--------------------------------On Writs Of Certiorari To The Supreme Court
Of Washington And The United States Court
Of Appeals For The Tenth Circuit
---------------------------------♦--------------------------------BRIEF FOR SOUTH DAKOTA AND
44 STATES AND THE DISTRICT OF COLUMBIA
AS AMICI CURIAE IN SUPPORT OF
COLORADO AND WASHINGTON
---------------------------------♦--------------------------------JASON R. RAVNSBORG,
South Dakota Attorney General
PAUL S. SWEDLUND,
Assistant Attorney General
Counsel of Record
OFFICE OF THE ATTORNEY GENERAL
STATE OF SOUTH DAKOTA
1302 East Highway 14, Suite 1
Pierre, SD 57501-8501
Telephone: 605-773-3215
paul.swedlund@state.sd.us
Attorneys for Amici Curiae
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
Do Article II, Section 1 or the Twelfth Amendment
of the United States Constitution forbid a state from
binding its presidential electors to the state’s popular
vote when casting their Electoral College ballots?
ii
TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE .........................
1
SUMMARY OF ARGUMENT ..............................
3
ARGUMENT ........................................................
4
A.
B.
Binding Electors Is Textually And Historically Consistent With The States’ Broad
Constitutional Appointment Powers Under Article II, Section 1 .............................
5
The Baca Court Interpreted The States’
Role And Powers Under Article II, Section
1 Too Restrictively ..................................... 13
CONCLUSION..................................................... 26
iii
TABLE OF AUTHORITIES
Page
CASES
Baca v. Colorado Dept. of State, 935 F.3d 887
(10th Cir. 2019)................................................ passim
Burroughs v. United States, 290 U.S. 534 (1934) .......19
Fitzgerald v. Green, 134 U.S. 377 (1890) .............. 19, 25
In the Matter of Guerra, 441 P.3d 807 (Wash.
2019) ........................................................................16
Husted v. A. Philip Randolph Inst., 138 S.Ct.
1833 (2018) ................................................................4
Levin v. Commerce Energy, Inc., 560 U.S. 413
(2010) ................................................................... 3, 19
McPherson v. Blacker, 146 U.S. 1 (1892) ............ passim
Ray v. Blair, 343 U.S. 214 (1952) ........................ passim
Utah v. Evans, 536 U.S. 452 (2002) ............................14
CONSTITUTIONAL PROVISIONS
United States Constitution, Article II, Section 1 .... passim
United States Constitution, Article III ........................9
OTHER CITATIONS
National Association of Secretaries of State,
Summary: State Laws Regarding Presidential
Electors (Nov. 2016), https://www.nass.org/
node/131 ....................................................................2
iv
TABLE OF AUTHORITIES – Continued
Page
National Conference of State Legislatures, The
Electoral College (Jan. 2020), https://www.
ncsl.org/research/elections-and-campaigns/theelectoral-college.aspx ................................................2
2 Story On The Constitution, § 1463 (5th Ed.
1891) .............................................................. 6, 12, 13
3 Story, Commentaries On The Constitution Of
The United States § 1457 (1833) ............................10
Hamilton (Publius), Federalist 68, published
March 12, 1788 ................................................ passim
Hamilton or Madison (Publius), Federalist 63,
published March 1, 1788 ..................................... 8, 11
Madison (Publius), Federalist 10, published November 22, 1787 ........................................................8
Madison (Publius), Federalist 55, published February 13, 1788 ...........................................................8
Hamilton (Publius) Federalist 35, published
January 5, 1788 .........................................................8
Republicus, Anti-Federalist 72, published
March 1, 1788 ...................................................... 9, 24
https://founders.archives.gov/documents/Hamilton/
01-04-02-0108 ............................................................7
https://founders.archives.gov/documents/Hamilton/
01-04-02-0098-0004 ...................................................7
https://www.senate.gov/artandhistory/history/
common/briefing/Constitution_Senate.htm ...........11
v
TABLE OF AUTHORITIES – Continued
Page
https://avalon.law.yale.edu/18th_century/debates_
904.asp (Morris) .................................................. 6, 24
https://avalon.law.yale.edu/18th_century/debates_
601.asp (Wilson) .................................................. 6, 11
https://avalon.law.yale.edu/18th_century/debates_
824.asp (Carrol).........................................................6
https://avalon.law.yale.edu/18th_century/debates_
601.asp (Mason) .................................................. 7, 12
https://www.usconstitution.net/consttop_ccon.
html .........................................................................11
https://avalon.law.yale.edu/18th_century/debates_
602.asp (Wilson, Hamilton) ......................................7
https://avalon.law.yale.edu/18th_century/debates_
618.asp (Hamilton) ...................................................7
https://www.usconstitution.net/consttop_faf.
html ...........................................................................9
https://harvardpolitics.com/united-states/theillusion-of-mob-rule/ ..................................................7
163 Cong.Rec. H188 (daily ed. Jan.6, 2017) .................5
163 Cong.Rec. H186 (daily ed. Jan. 6, 2017) ................5
Restatement 3rd of Agency §§ 301, 306, 309 ..... 13, 20, 23
Rutland, James Madison The Founding Father
(1987) .......................................................................12
Levinson, Article V After 230 Years: Time for a
Tune-Up, 67 Drake L.Rev. 913 (2019) ....................12
vi
TABLE OF AUTHORITIES – Continued
Page
Hawley, The Transformative Twelfth Amendment, 55 Wm. & Mary L.Rev. 1501 (2014) ..............12
Uniform Faithful Presidential Electors Act
§ 7(c) ........................................................................20
Wash.Const.Art. VI, §§ 1, 3, 4 .....................................17
Me.Rev.Stat. 21-A § 805............................................ 1, 2
Colo.Rev.Stat. § 1-4-304 ................................................5
Nev.Rev.Stat. § 298.075 ............................................ 1, 5
Utah Code Ann. § 20A-13-304 .................................. 1, 5
N.M.Stat.Ann. § 1-15-9 ............................................. 1, 5
S.C. Code Ann. § 7-19-80 .......................................... 1, 5
Haw.Rev.Stat. § 14-28 ............................................... 1, 5
Ohio Rev. Code 3505.40 ............................................ 1, 5
Ala. Code §§ 17-14-30–17-14-37 .................................17
Haw.Rev.Stat. § 14-23 .................................................17
Nev.Const.Art. 2, § 1 ...................................................17
D.C. Code § 1-1001.08(g)......................................... 1, 17
Mich.Comp.Laws Ann. § 168.41 .................................17
Mich.Comp.Laws Ann. § 168.47 ............................. 1, 20
Neb.Rev.Stat. § 32-714(4) ....................................... 2, 20
1
INTEREST OF AMICI CURIAE
Amici curiae are states that have exercised, by
varying means acceptable to their respective electorates, their constitutional authority to direct the
manner of appointing their presidential electors and
allotting their electoral votes. Thirty-two states and
the District of Columbia have enacted laws binding a
political party’s designated presidential electors to cast
their vote for the party’s nominees for President and
Vice President.1 South Dakota, like other states, does
not bind its electors, by pledge or otherwise.2 For South
1
These amici curiae states bind electors: Alabama (Ala.
Code § 17-14-31); Alaska (Alaska Statute 15.30.040, -90); Arizona
(Ariz.Rev.Stat. 16-212); California (Cal. Elections Code § 6906);
Connecticut (Conn.Gen.Stat. § 9-176); Delaware (Del. Code Ann.
Title 15 § 4303(b)); Florida (Section 103.021(1), Fla.Stat.); Hawai’i
(Haw.Rev.Stat. § 14-28); Indiana (Ind. Code §§ 3-10-4-1.7, -8, -9);
Maine (21-A Me.Rev.Stat. § 805(2)); Maryland (Md. Code Ann.
§ 8-505(c)); Massachusetts (Mass.Gen. Laws Ch. 53 § 8); Michigan (Mich.Comp.Laws Ann. § 168.47); Minnesota (Minn.Stat.
§§ 208.43, 46); Mississippi (Miss. Code Ann. § 23-15-785(3)); Nebraska (Neb.Rev.Stat. §§ 32-713(2), -714(2)); Nevada (Nev.Rev.Stat.
298.045(1), 298.075(2)(b)); New Mexico (N.M.Stat.Ann. § 1-15-9
(imposing felony liability for casting vote for any candidate other
than nominee of party that appointed elector)); Montana (Mont.
Code Ann. § 13-25-304, -307); North Carolina (N.C.Gen. Stat.
§ 163-212); Ohio (Ohio Rev. Code 3505.39, -40); Oklahoma
(Okla.Stat. Title 26 § 10-102); Oregon (Ore.Rev.Stat. 248.355(2));
South Carolina (S.C. Code Ann. § 7-19-80); Tennessee (Tenn.
Code Ann. § 2-15-104(c)(1)); Utah (Utah Code Ann. § 20A-13-304);
Vermont (Vt.Stat.Ann. Title 17, § 2732); Virginia (Va. Code
§ 24.2-203 ¶ 2); Wisconsin (Wis. Stat. § 7.75(2); Wyoming (W.S.
22-19-108). See also District of Columbia (D.C. Code § 11001.08(g)).
2
These amici curiae states do not bind electors: Georgia,
Idaho, Illinois, Iowa, Kentucky, Louisiana, Missouri, New Hampshire,
2
Dakota and other states, custom and practice have dictated that electors honor the electorate’s and prevailing party’s will and cast their votes for the presidential
ticket that won the statewide popular vote. Whether by
statute or custom and practice, today forty-eight states
and the District of Columbia allot their electoral votes
to the winner of the statewide popular vote; Maine and
Nebraska allot two electors to the winner of the
statewide popular vote and one elector to the winner of
the popular vote in each of the state’s congressional
districts.3
The intensifying polarization of the national electorate, and the record number of rogue electors in the
2016 election, have led to challenges to the historical
practices of binding and non-binding states alike. The
Chiafalo decision preserves state authority over electoral balloting but the Baca decision nullifies binding
statutes in all states within its jurisdiction and
shrouds the binding statutes and practices of other
states in doubt. Amici curiae file this brief in the interest of preserving the constitutional authority of state
legislatures to determine for themselves and their
electorates the manner of selecting presidential
New Jersey, New York, North Dakota, Pennsylvania, Rhode Island, South Dakota and West Virginia.
3
National Association of Secretaries of State, Summary:
State Laws Regarding Presidential Electors (Nov. 2016), https://www.
nass.org/node/131; National Conference of State Legislatures,
The Electoral College (Jan. 2020), https://www.ncsl.org/research/
elections-and-campaigns/the-electoral-college.aspx; Me.Rev.Stat.
21-A § 805; Neb.Rev.Stat. § 32-714.
3
electors, conducting electoral balloting and allotting
their electoral votes.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
Whether to bind electors and, if so, by what means
is the constitutional prerogative of states and their legislatures. With the “plenary power . . . in the matter of
the appointment of electors” that this Court has long
recognized comes the authority to take steps to ensure
that electoral votes are cast in the manner mandated
by each state’s legislature. McPherson v. Blacker, 146
U.S. 1, 35 (1892); Ray v. Blair, 343 U.S. 214, 227 (1952)
(recognizing “state’s right to appoint electors in such
manner, subject to possible constitutional limitations,
as it may choose”). Given that state sovereignty is integral to our federal system, and states are central to
the role and function of the electoral college under the
Constitution, it seems axiomatic that if the framers
had wanted to limit state influence over electoral balloting and allotting electoral votes they would have
done so explicitly. Levin v. Commerce Energy, Inc., 560
U.S. 413, 427 (2010)(when “the Constitution is silent,”
states retain their traditional “legislative prerogative”
to address the matter as they see fit).
Though nothing in the text of the Constitution or
its historical implementation precludes states from
conditioning service as an elector on honoring the
state’s popular vote for a presidential ticket, there is
now conflict over how to interpret this textual silence.
The scope of state autonomy in the matter of
4
appointing electors (particularly the authority to enact and enforce statutory or party pledges to honor
the popular vote), conducting electoral balloting and
allotting electoral votes is increasingly salient in the
current political climate. Given the inherently undemocratic and chaotic nature of an unbridled electoral
college, and the potential for disputed outcomes in future elections, the lower court’s decision in Baca should
be reversed and the Washington Supreme Court’s decision in Chiafalo affirmed.
---------------------------------♦---------------------------------
ARGUMENT
If it is constitutional to exact a pledge to support a
party’s nominee as a condition of serving as an elector,
it stands to reason that there is some constitutional
means of enforcing that pledge. Ray, 343 U.S. at 227
(1952); Husted v. A. Philip Randolph Inst., 138 S.Ct.
1833, 1849 (2018)(Thomas, J., concurring)(analogizing
the States’ Art. II, § 1 authority over electors to the
Voter Qualifications Clause and explaining the states’
“power to establish [voting] requirements would mean
little without the ability to enforce them”). Mechanisms adopted by states for enforcing such pledges are
by no means incompatible with their broad authority
and functions under Article II, Section 1 of the United
States Constitution or the constitutional function of
the electoral college.4 The Baca court arrived at its
4
The Constitution’s broad delegation of authority allows,
even encourages, states to experiment with and settle upon a
manner of appointment suited to and accepted by its residents.
5
decision to invalidate Colorado’s binding statute by interpreting Article II, Section 1 too restrictively, and
overlooking the electoral college’s historical role as the
voice of the states and their electorates.
A. Binding Electors Is Textually And Historically Consistent With The States’ Broad
Constitutional Appointment Powers Under
Article II, Section 1
The Constitution places no injunction upon the
states regarding the manner in which they appoint
their electors, conduct the meeting of electors or allot
their electoral votes. Article II, Section 1’s delegation
to the states of the power to direct the manner in which
they will perform these functions is, by its terms, sufficiently open-ended to allow conditioning service as an
elector on a pledge to support the nominees of the
Some states provide for the removal and replacement of faithless
electors, with the vote of the replacement elector counted and included in the tally sent to Congress. Colo.Rev.Stat. § 1-4-304;
Nev.Rev.Stat. § 298.075; Utah Code Ann. § 20A-13-304. Some
states impose penalties, such as fines or potential incarceration,
on faithless electors. N.M.Stat.Ann. § 1-15-9; S.C. Code Ann. § 719-80. Other states require electors to vote for their party’s presidential candidate, but do not explicitly specify how the requirement is enforced. Haw.Rev.Stat. § 14-28; Ohio Rev. Code 3505.40.
This leaves open the possibility that faithless electoral votes from
these states, cast in violation of state law, might nevertheless be
included in the electoral vote tally sent to Congress, as was the
case for two faithless electoral votes from Texas and one from Hawaii in the 2016 presidential election. 163 Cong.Rec. H188 (daily
ed. Jan. 6, 2017); 163 Cong.Rec. H186 (daily ed. Jan. 6, 2017).
6
presidential ticket who won the state’s popular vote.5
It has ever been so. “In the first election held under the
Constitution, the people looked beyond these agents
(electors), fixed upon their own candidates for President and Vice President and took pledges from the
electoral candidates to obey their will. In every subsequent election, the same thing has been done.”6 Alexander Hamilton’s concept of a college of “informed” and
“discerning,” independent electors simply was not embodied in, and never understood to emanate from, the
adopted constitutional language.7
The absence of textual support for the Hamiltonian model of the electoral college may stem from the
preference of certain influential constitutional convention delegates, like James Wilson, George Mason and
Gouverneur Morris, “for an immediate choice [of the
President and Vice President] by the people.”8 But even
Mason considered direct voting “impracticable” in an
age before organized national political parties and
5
United States Constitution, Article II, Section 1, Clause 2
(“Each State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors, equal to the whole
Number of Senators or 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”).
6
2 Story On The Constitution, § 1463 (5th Ed. 1891).
7
Hamilton (Publius), Federalist 68, published March 12,
1788.
8
https://avalon.law.yale.edu/18th_century/debates_904.asp
(Morris); https://avalon.law.yale.edu/18th_century/debates_601.
asp (Wilson); https://avalon.law.yale.edu/18th_century/debates_824.
asp (Carrol).
7
mass communication.9 Wilson (a future Justice of this
Court) bowed to this perception and made a proposal
for “election [of the President and Vice President] to be
made by Electors.”10
This created some common ground with opponents
of direct election like Hamilton, whose “British Plan”
proposed “the election [of the chief executive] . . . by
Electors chosen by the people in the Election Districts.”11 But, consistent with Hamilton’s preference for
a strong central government, his “British Plan” contained certain proposals considered monarchical by
some convention delegates, such as a chief executive
who wielded an absolute veto and served for life.12 As
a result, convention delegates favored Wilson’s plan.
Though Wilson’s and Hamilton’s plans both employed electors in lieu of direct election, Hamilton’s
plan (animated by his concern that “inclin[ing] too
much to democracy” would lead to popular “tumult and
dissent”)13 provided no role for the general electorate
9
https://avalon.law.yale.edu/18th_century/debates_601.asp
(Mason).
10
https://avalon.law.yale.edu/18th_century/debates_602.asp
(Wilson, Hamilton).
11
https://avalon.law.yale.edu/18th_century/debates_618.asp
(Hamilton).
12
https://avalon.law.yale.edu/18th_century/debates_618.asp
(Hamilton); https://founders.archives.gov/documents/Hamilton/
01-04-02-0098-0004.
13
https://founders.archives.gov/documents/Hamilton/01-0402-0108; https://founders.archives.gov/documents/Hamilton/01-0402-0098-0004; https://harvardpolitics.com/united-states/the-illusion-of-mob-rule/; Hamilton (Publius), Federalist 68, published
8
except to vote for who would serve as an elector. By
contrast, Wilson’s plan reflects his greater faith in the
electorate by providing that electors would be appointed to their task by “any mode [a state’s] legislature saw fit to adopt.” McPherson, 146 U.S. at 29. The
broader powers afforded to electorates, acting through
their legislatures, under Wilson’s plan are inclusive
of more than one mode of appointment and implementation. Thus, the record of the constitutional convention reflects no consensus on the independence of
electors, only a consensus that the manner of appointing electors and conducting electoral balloting would
belong to the states and their electorates.
The present-day argument for strict electoral independence derives not from Wilson’s convention commentary or the adopted constitutional text but
Federalist 68, in which Hamilton promotes this concept of the electoral college. “Doubtless it was supposed
[by Hamilton and like-minded framers] that the electors would exercise a reasonable independence and fair
judgment in the selection” of the President as conceived by his “British Plan.” McPherson, 146 U.S. at 36.
But not all framers were of a like mind. McPherson,
146 U.S. at 28 (describing the varied proposals floated
at the convention for the appointment of electors).
Some were less inclined to see “free people resign their
March 12, 1788; Hamilton or Madison (Publius), Federalist 63,
published March 1, 1788; Madison (Publius), Federalist 10, published November 22, 1787; Madison (Publius), Federalist 55, published February 13, 1788; Hamilton (Publius) Federalist 35,
published January 5, 1788.
9
right of suffrage into other hands besides their own”14
based on a fear of mob rule,15 or concede that “the sacred rights of mankind should thus dwindle down to
Electors of electors.”16 Though the interposition of an
electoral college between the people and their President had carried the day (partly to induce southern
states into the union), a textual requirement of strict
independence did not. Rather, in accordance with Wilson’s plan and the adopted language of Article II, Section 1, it was the province of “the legislative body of
each state . . . to point out to their constituents some
mode of choice” of electors.17 It would appear Hamilton
published Federalist 68 as a means of persuading
states to implement the electoral college according to
his “British Plan.”
Article III of the Constitution demonstrates that
the framers knew how to create independent institutions. If it had been the determined and universal intent of all the framers (or even a majority of them)
that the people should wholly “resign their right of
suffrage” to independent intermediaries, Article II,
Section 1 (like Article III) would contain concrete
measures to assure elector independence. Instead,
14
Republicus, Anti-Federalist 72, published March 1, 1788.
Notable Anti-Federalists were Patrick Henry, Thomas Paine,
George Mason, George Clinton and Luther Martin. https://www.
usconstitution.net/consttop_faf.html.
15
https://harvardpolitics.com/united-states/the-illusion-ofmob-rule/.
16
Republicus, Anti-Federalist 72, published March 1, 1788.
17
Republicus, Anti-Federalist 72, published March 1, 1788.
10
even proponents of the Hamiltonian model admit that
strict elector independence is no more than “implicit”
in the adopted text. Ray, 343 U.S. at 232 (Jackson, J.,
dissenting).
By omitting concrete measures for elector independence, Hamilton’s “original expectation may be
said to have been frustrated,” “completely frustrated”
even.18 McPherson, 146 U.S. at 36 (“may” italicized to
illustrate that the Court treated the proposition that
Hamilton’s concept of the electoral college had been
“frustrated” by its historical manner of implementation as merely arguable). But, as the historical record
reflects, the convention did not reflexively adopt Hamilton’s views on every matter. McPherson, 146 U.S. at
28 (convention rejected Hamilton’s suggestion of “electors chosen by electors chosen by the people”). Hamilton would have pressed for language that implemented
his electoral college design, and other features of his
“British Plan,” if he had believed his fellow delegates
would have accepted it. But Hamilton and other Federalist delegates had to make compromises with other
delegates. Article II, Section 1 is that compromise; as
adopted, it “reconciled [a] contrariety of views” by dispensing with direct election but granting states “the
broadest power of determination” to select the Hamiltonian model or some other of their own choosing.
McPherson, 146 U.S. at 28.
18
3 Story, Commentaries On The Constitution Of The
United States § 1457 (1833).
11
The frustration of Hamilton’s unrealistic idyll of
independent, impartial electors19 is “no reason for holding that the power confided to the states by the Constitution has ceased to exist.” McPherson, 146 U.S. at 36.
Wilson, ever guided by the principle that all governmental power derived from the people,20 appears to
have anticipated that the role of the electoral college
would evolve and change as the nation matured. Wilson predicted that “Continental Characters will multiply as we more & more coalesce, so as to enable the
electors in every part of the Union to know & judge
them.”21
19
In theory, the Senate, with its longer terms of office, was
constituted as an institution that placed “attachment to the public good” over ideological faction. Hamilton or Madison (Publius),
Federalist 63, published March 1, 1788; https://www.senate.gov/
artandhistory/history/common/briefing/Constitution_Senate.htm
(six year terms created to “make senators largely independent of
public opinion”). In practice, few would argue that the Senate is
as immune to public opinion as originally intended. Nor was it
quite realistic to expect the electoral college to function in practice
as intended in theory – as an informed and discerning independent body concerned only with the commonweal and selecting the
national executive solely on qualification and character. States
understood the discrepancy between theory and practice early
and determined to structure electoral college balloting in a way
that would not allow intermediaries to simply substitute their interests and ideological perspectives for those of the electorate’s.
20
https://www.usconstitution.net/consttop_ccon.html.
21
https://avalon.law.yale.edu/18th_century/debates_904.asp
(Wilson). Throughout the notes of the convention, “Electors” in
the sense of members of the electoral college are generally referred to with a capital “E” while “electors” in the sense of voters
at large are generally referred to with a lower case “e.”
12
The swift formation of political parties, and their
effective promotion of candidates of national stature by
means of “a circulation of newspapers through the entire body of the people,”22 gave rise, by the time of the
first contested election, to an electorate that was itself
sufficiently informed and discerning as to have no use
for a Hamiltonian-style electoral college. The Twelfth
Amendment’s ratification in 1804 encouraged the formation of political parties through which the general
electorate could influence everything from the selection of candidates to appointment of electors pledged
to the party. This singular constitutional “recognition
of the de facto importance of political parties”23 “connect[ed] the [presidency] to popular majorities in a way
it had not been before.”24
The presumed impracticalities of the “immediate
choice” of President and Vice President thus overcome,
state legislatures opted for direct election to the extent permitted by Article II, Section 1 by exacting
“pledges from the electoral candidates to obey” the
state’s popular vote.25 Though these early elections
22
Rutland, James Madison The Founding Father at 108-109
(1987)(describing Madison’s essays in the National Gazette supportive of the Democratic-Republican party’s opposition to Federalist policies and candidates).
23
Levinson, Article V After 230 Years: Time for a Tune-Up,
67 Drake L.Rev. 913, 931 (2019).
24
Hawley, The Transformative Twelfth Amendment, 55 Wm.
& Mary L.Rev. 1501, 1507 (2014).
25
https://avalon.law.yale.edu/18th_century/debates_601.asp
(Wilson, Mason);
2 Story On The Constitution, § 1463 (5th Ed. 1891).
13
were predominantly populated by candidates culled
from the nation’s founders, “[n]o question was raised
[by them or the parties they represented] as to the
power of the state to appoint” electors in this manner
if “its legislature saw fit.” McPherson, 146 U.S. at 29,
36 (where “ambiguity or doubt” surround constitutional provisions, “contemporaneous and subsequent
practical construction[s] are entitled to the greatest
weight”).
B. The Baca Court Interpreted The States’
Role And Powers Under Article II, Section 1
Too Restrictively
Most states have exercised their plenary powers
under Article II, Section 1 to field electors who act as
agents of the states, bound by state law to the electorate’s will in its selection of President and Vice President. 26 Inherent in the power to appoint agents is the
power to limit their authority and replace them if they
act outside the scope of that authority.27 This system
26
As implemented since “the first election held under the
constitution,” voters “looked beyond these agents (electors)” and
“fixed upon their own candidates for President and Vice President;” electors are “mere agents” who “are not left to the exercise
of their own judgment.” 2 Story On The Constitution, § 1463 (5th
Ed. 1891); McPherson, 146 U.S. at 27, 36 (“state . . . acts . . .
through its electoral college” and electors are “chosen simply to
register the will of the appointing power in respect of a particular
candidate”).
27
Restatement 3rd of Agency § 301 (agent’s “authority . . . is
created by a principal’s manifestation to an agent that . . . expresses the principal’s assent that the agent take action on the
principal’s behalf ”), § 306 (“agent’s actual authority may be
14
“has prevailed too long and been too uniform to justify
. . . interpreting the language of the Constitution as
conveying any other meaning.” McPherson, 146 U.S. at
27, 36
As noted by the Baca court, Article II, Section 1 is
silent in regard to a state’s authority to remove and
replace rogue, ineligible or absentee electors.28 The
Baca court’s approach to interpreting or resolving this
silence differs from Ray’s in significant ways that warrant reversal. Though the Constitution is to be interpreted according to its text, the Baca court relied
inordinately on extra-textual sources – such as Federalist 68 and period dictionaries – to import meaning
that is not present.29 Federalist 68 and the adopted
language of Article II, Section 1 are not in agreement,
and period definitions of “elector,” “vote” and “ballot”
terminated by: . . . (4) an agreement between the agent and the
principal or occurrence of circumstances on the basis of which the
agent should reasonably conclude that the principal no longer
would assent to the agent’s taking action on the principal’s behalf
. . . (5) a manifestation of revocation by the principal to the agent,
or of renunciation by the agent to the principal . . . (6) the occurrence of circumstances specified by statute”), § 309 (“agent’s actual authority terminates (1) as agreed by the agent and the
principal . . . or (2) upon the occurrence of circumstances on the
basis of which the agent should reasonably conclude that the principal no longer would assent to the agent’s taking action on the
principal’s behalf ”)(2006).
28
Baca v. Colorado Department of State, Petitioner’s Appendix at 1, 78, 90 (Constitution is “silent” regarding the power of
states to remove electors after they have been appointed or to
strike their votes).
29
Utah v. Evans, 536 U.S. 452, 474 (2002).
15
are by no means incompatible with a system of pledged
electors.
Period dictionaries identify both broad and narrow
accepted usages of the terms “elector,” “vote” and “ballot.” While the Baca court fixed on the broad usages,
the narrower usages are compatible with pledged electors. Both pledged and independent electors “vote” in
the sense of a “voice given and numbered,” “speak[ing]
for or in behalf of any person or thing,” and “determin[ing] by suffrage” the outcome of an election. Both
pledged and independent electors are “electors” in the
sense of having “a vote in the choice of any public officer” and “right to elect . . . a person into an office.”
Both pledged and independent electors cast a “ballot”
in the sense of registering a vote by a “ball or ticket.”30
Since service as an elector is a voluntary act, states impose no unconstitutional handicap upon that service
by hewing to narrower, historical usages of terms like
“elector,” “vote,” or “ballot” to enforce a pledge law. Ray,
343 U.S. at 229 (electors may “voluntarily assume obligations to vote for a certain candidate”).
Ray did not infill textual voids with partisan Federalist doctrine or the broadest usages of textual
terms. Rather, in the absence of a “definite answer” to
the question of whether a state may exact pledges from
its electors, the Ray Court condoned the practice because neither Article II, Section 1 (nor the 12th
Amendment) expressly prohibit it. Ray, 343 U.S. at 224
(“Neither the language of Art. II, [§] 1, nor that of the
30
Baca, Petitioner’s Appendix at 102.
16
Twelfth Amendment forbids a party to require from
candidates in its primary a pledge of conformity”). The
Baca court took the opposite approach, forbidding Colorado from binding electors to their oath because of the
absence of constitutional language expressly permitting it.31 The Chiafalo court did not make this mistake;
like Ray, Chiafalo ruled that elector pledges could be
imposed and enforced because the Constitution did not
prohibit them.32 The Ray and Chiafalo courts’ analysis
appropriately mirrors the Tenth Amendment’s reservation of all powers to the states not prohibited by Article II, Section 1. Article II, Section 1 could scarcely
function any other way.
Case in point, Article II, Section 1’s only express
limitation on the eligibility of persons to serve as electors is a prohibition against certain federal officers.
Were state authority over who may serve as an elector
limited to what Article II, Section 1 expressly permits,
then states could not impose further, sensible eligibility criteria such as residency, age, competency, party
affiliation or a clean criminal history. Yet, such
31
Baca, Petitioner’s Appendix at 89, 97 (absent “constitutional delegation to the states of power to add qualifications to
those enumerated in the constitution, such power does not exist,”
prohibiting binding electors to their pledges because the “Constitution provides no express role for the states after appointment of
its presidential electors,” the “Constitution affords [states] no
other role in the selection of the President and Vice-President”).
32
In the Matter of Guerra, 193 Wash.2d 380, 399 (Wash.
2019).
17
eligibility criteria are commonplace.33 Once one accepts the incontestable proposition that eligibility criteria beyond those provided in Article II, Section 1 are
imperative to empaneling capable electors, then it follows that state authority over the appointment of electors, conducting electoral balloting and allotting
electoral votes is greater than what Article II, Section
1 expressly permits.
The Baca court rationalized its restrictive view of
state authority under Article II, Section 1 on the
ground that Clause 3 describes the mechanics of voting
33
Wash.Const.Art. VI, §§ 1, 3, 4 (setting minimum age of 18
and residency, clear criminal history and competency requirements for service as an elector); Ala. Code §§ 17-14-30 – 17-14-37
(electors must be qualified to vote in Alabama); Haw.Rev.Stat.
§ 14-23 (electors must be registered voters of the state); Nev.
Const.Art. 2, § 1 (electors must be competent, reside in state, be
at least 18 and have no felony convictions); Tenn. Code Ann. § 215-102 (two at-large electors must be residents of the state and
remainder must be residents of the congressional district they
represent); Mich.Comp.Laws Ann. § 168.41 (electors must have
been U.S. Citizen for 10 years and two at-large electors must be
residents of the state and remainder must be residents of the congressional district they represent); D.C. Code § 1-1001.08(g)(1),
(2)(elector must be resident of the District for a period of 3 years
immediately preceding the date of the presidential election and
a registered voter); Mass.Gen. Laws Ch. 53 § 9 (electors must
be resident of state, 18 years of age); 21-A Me.Rev.Stat. § 352
(electors must be a resident of and registered voter in the electoral
division he/she seeks to represent); Minn.Stat. § 208.42/
Minn.Const.Art. VII, § 6 (electors must be 21, resident of state,
eligible to vote, U.S. citizen, competent, no conviction for treason);
Section 97.041, Fla.Stat. (party electors must satisfy citizenship,
residency, age and other requirements of a registered voter);
Alaska Statute 15.30.030 (elector must meet citizenship, residency, age and other qualifications of a registered voter).
18
in more detail than Clause 2 describes a state’s electoral appointment powers. “From the moment the electors are appointed,” the Baca court reasoned, “the
election process proceeds according to detailed instructions set forth in the Constitution itself.”34 According to
Baca, Clause 3 is “inconsistent with [removal] power”35
because it allegedly “provides no express role for the
states after appointment of its presidential electors . . .
and the Constitution affords them no other role”36 beyond their Clause 2 appointment power.
Clause 3 itself exposes the flaws in these premises.
Clause 3’s two-sentence description of the mechanics
of state voting is hardly “detailed.”37 And since those
two sentences of Clause 3 are just as silent as Clause
238 in regard to a state’s authority to enforce conditions
34
Baca, Petitioner’s Appendix at 98.
Baca, Petitioner’s Appendix at 99.
36
Baca, Petitioner’s Appendix at 97.
37
Article II, Section 1, Clause 3 reads in pertinent part: “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.”
38
Article II, Section 1, Clause 2 reads: “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.”
35
19
of appointment once voting is underway, there is no
reason to analyze Clause 3’s textual silence any differently than the Ray Court analyzed Clause 2’s, which is
to say no reason to deviate from the principle that
when “the Constitution is silent,” it is the “legislative
prerogative” of the states to address matters as they
see fit. Levin, 560 U.S. 413 at 427.
Moreover, contrary to Baca’s central premise, the
states’ role does not end with its Clause 2 appointment
of presidential electors. Per Clause 3, the states conduct and preside over the meeting of electors, certify
the ballots and transmit the results to Congress. “The
sole function of the presidential electors is to cast, certify, and transmit the vote of the state for president and
vice-president of the nation.” Fitzgerald v. Green, 134
U.S. 377, 379 (1890). All functions of the electoral college are performed in the states by the states. Indeed,
prior to the transmittal of the balloting to Congress,
the only federal role in the meeting of electors is to set
the day of the meeting.39 “[O]therwise, the power and
jurisdiction of the state” over electoral balloting “is exclusive.” McPherson, 146 U.S. at 35.
Though electors perform a “federal function” at
this meeting, they are state agents who derive their authority from the “appointing power,” subject, like any
agent, to basic agency principles. Fitzgerald, 134 U.S.
at 379 (electors are state officers); McPherson, 146 U.S.
39
Burroughs v. United States, 290 U.S. 534, 544 (1934)(only
federal function in connection with electoral balloting is to set
“the time of choosing electors, and the day on which they shall
give their votes”).
20
at 27 (“[t]he state . . . acts . . . through its” electors). Per
basic agency principles, a Colorado elector who casts a
faithless ballot has cast no ballot at all because he is
not authorized to make a selection.40 Indeed, Micheal
Baca ceased to be an elector the moment he formed the
intent to act outside the scope of his authority; the
state did not “remove” Baca so much as he abdicated
his agency by unilaterally resolving to act outside the
scope of his authority.41
Under such circumstances, all that remains is for
the state simply to replace a wayward elector, just as it
40
The Baca court also reasoned that states were impotent
to enforce elector pledges because the Twelfth Amendment “did
nothing to prevent future faithless voting.” Baca, Petitioner’s Appendix at 111. But this reasoning cuts both ways; the Twelfth
Amendment also did nothing to prevent pledged electoral ballots,
and Congress has never declined to count a pledged ballot. Congress also counts the ballots of electors, such as those from Colorado, whose names never appeared on any general-election voting
form, thus counting the ballots of electors whose identities, let
alone their capacity for “informed” and “discerning” decision making, were unknown to voters.
41
Restatement 3rd of Agency § 306(4)(agency terminates
once “agent should reasonably conclude that the principal no
longer would assent to the agent’s taking action on the principal’s
behalf ”); see also Uniform Faithful Presidential Electors Act
§ 7(c)(“An elector who refuses to present a ballot, presents an unmarked ballot, or presents a ballot marked in violation of the elector’s pledge . . . vacates the office of elector”); Mich.Comp. Laws
Ann. § 168.47 (refusal or failure to vote for the presidential and
vice presidential candidates appearing on the ballot of the political party that nominated the elector constitutes “a resignation
from the office of the elector”); Neb.Rev.Stat. § 32-714(4)(presidential elector who “attempts to present a ballot in violation of his
or her pledge vacates the office”).
21
would (must, to prevent dilution of its electoral votes
and influence) if an elector committed a felony, died,
failed to appear, moved out of state, was appointed to a
disqualifying federal office [United States Senate or
House of Representatives, cabinet, or the federal judiciary] or otherwise became ineligible to serve in the
interregnum between appointment and voting. Replacing a faithless agent in the course of a proceeding conducted and presided over by the appointing principal
hardly seems incompatible with the active role in electoral balloting that Clause 3 assigns to the states.
“[T]he word ‘appoint’ . . . was manifestly used as
conveying the broadest power of determination,” including the plenary power to take steps to ensure electoral votes are cast in accordance with the state
legislature’s mandate. McPherson, 146 U.S. at 27. Electors receive their appointments subject to legislative
limitations on their authority (just as judges receive
their appointments subject to legislative limitations on
their jurisdiction and authority to act in many areas).
If the power to replace an agent when circumstances
dictate is not inherent in the power to appoint, a state
and its voters could be disenfranchised in whole or in
part if one or more electors were to become ineligible,
unavailable or unwilling to serve in the interval between appointment and voting. In South Dakota,
which has 3 electoral votes, the inability to replace an
ineligible, unavailable or unwilling elector after appointment would diminish the state’s vote and influence by 33% per lost elector. One faithless elector
diminishes not only their state’s relative influence in
22
the electoral college and nationally, but also nullifies
the votes of a population of voters roughly equivalent
to an entire congressional district. And the historically
close elections of 1876 (Hayes 185/Tilden 184) and
2000 (Bush 271/Gore 266) demonstrate how the inability to replace even one elector could throw an election.42
Until now, such irregularities have been prevented
by the accepted proposition that “[n]either the language of Art. II, § 1, nor that of the Twelfth Amendment, forbids” the appointing power from setting
eligibility criteria for service as a presidential elector,
and replacing an elector who, subsequent to appointment, becomes ineligible, unavailable or unwilling to
serve. Ray, 343 U.S. at 225. “[S]ecuring party candidates in the general election, pledged to the philosophy
and leadership of that party . . . is an exercise of the
state’s right to appoint electors in such manner, subject
to possible constitutional limitations, as it may choose.”
Ray, 343 U.S. at 227. But the Baca court has now
42
Binding electors serves as a prophylaxis against a scenario
that proponents and detractors of the electoral college would
likely agree is problematic: the inauguration of a president who
had won neither the electoral nor popular vote. Historically, Congress has counted all electoral votes transmitted to it by the
states, including those of both bound and faithless electors. But
faithless electors are uniquely problematic because, unlike bound
electors, they can deviate from both the state’s popular vote and
the national popular vote (as all seven faithless electors in 2016
did). A presidency made possible by a faithless elector could generate lasting and damaging controversy, as would, no doubt, a
presidency made possible by a bribed elector whom a state was
powerless to replace.
23
divested states within its jurisdiction of authority to
replace electors who are unfaithful to the philosophy
and leadership of the party they were appointed to
serve based on reasoning that does not square with
Ray.
While it is true that Clause 3 contains no express
provision for removal of an elector after appointment,
or for nullification of an elector’s selection of an unauthorized candidate,43 this is not the proper question.
Per Ray and McPherson, unless the Constitution “forbids” it, Article II, Section 1’s plenary power of appointment, and the state’s express role in presiding over
electoral balloting, are “sufficiently comprehensive” to
encompass limits on the authority of state agents and
the inherent power to remove them for acting outside
the scope of their agency.44 McPherson, 146 U.S. at 27.
The Baca court’s reasoning and decision cannot be
reconciled with the sovereign authority of the states to
act in areas reserved to them by the Constitution, the
plain language of Article II, Section 1 or this Court’s
precedents. Doubtless some delegates expected electors to exercise independent judgment, but it is equally
doubtless that, while the delegates agreed on the formation of an electoral college, they did not agree on
a mechanism for appointing electors, conducting the
43
Baca, Petitioner’s Appendix at 97 (“Constitution provides
no express role for the states after appointment of its presidential
electors”).
44
Restatement 3rd of Agency § 306(4), (5), (6), § 309, Note 19
supra.
24
balloting or allotting electoral votes. Article II, Section 1
“leaves it to the [state] legislature[s] exclusively to define the method of effecting” these objectives. McPherson, 146 U.S. at 27. The determination of a large
majority of states to formally bind their electors to the
popular vote is by no means incompatible with a system born of a desire “for [the] immediate choice [of the
President and Vice President to be] by the people”45 or
Article II, Section 1’s adopted language. With a presidential election months away, affirming the traditional
practices of Colorado, Washington and other binding
states is essential to the proper functioning of the electoral college, the prevention of the disenfranchisement
of voters by wayward electors, and the avoidance of divisive disputes over the outcome of the election.
*
*
*
Federalist 68 describes how Hamilton wanted the
electoral college to work, but other founders loathed
the idea of the people “resign[ing] their right of suffrage” to a collegium electi of “informed” and “discerning” intermediaries.46
Instead of resolving this “contrariety of views” in
favor of one faction or the other, the founders left it to
state legislatures to adopt the Hamiltonian model or
another of their own choosing. McPherson, 146 U.S. at
27. “[F]rom the formation of the government until now
45
https://avalon.law.yale.edu/18th_century/debates_904.asp
(Morris).
46
Republicus, Anti-Federalist 72, published March 1, 1788;
Hamilton (Publius), Federalist 68, published March 12, 1788.
25
the practical construction of [Article II, Section 1] has
conceded plenary power to the state legislatures in the
matter of the appointment of electors,” including the
power to remove and replace them as circumstances
dictate. McPherson, 146 U.S. at 35. The plenary powers
of states under Article II, Section 1 are not abridged
just “because the operation of the system has not fully
realized the hopes of [some of ] those by whom it was
created.” McPherson, 146 U.S. at 35, 36.
The nation’s experience with binding electors to
national party candidates has, ironically, proven to
both optimize Wilson’s preference for direct election of
the President and Vice President and serve as Hamilton’s firewall against mob rule, provincialism, extreme
faction and cabal. In the interest of orderly democratic
elections, the amici curiae states urge this Court to
preserve state autonomy over electoral college balloting and state authority to bind electors to “the vote
of the state” should the electorate, acting through
their legislatures, so mandate. Fitzgerald, 134 U.S.
at 379.
---------------------------------♦---------------------------------
26
CONCLUSION
This Court should reverse the Tenth Circuit’s
Baca decision and affirm the decision of the Washington Supreme Court in Chiafalo.
Respectfully submitted this 8th day of April 2020.
JASON R. RAVNSBORG
Attorney General
PAUL S. SWEDLUND
Assistant Attorney General
OFFICE OF THE ATTORNEY GENERAL
STATE OF SOUTH DAKOTA
1302 East Highway 14, Suite 1
Pierre, South Dakota 57501-8501
605-773-3215
paul.swedlund@state.sd.us
27
COUNSEL FOR ADDITIONAL AMICI CURIAE
LYNN FITCH
Attorney General
STATE OF MISSISSIPPI
BRIAN E. FROSCH
Attorney General
STATE OF MARYLAND
CURTIS T. HILL, JR.
Attorney General
STATE OF INDIANA
AARON D. FORD
Attorney General
STATE OF NEVADA
BRIDGET HILL
Attorney General
STATE OF WYOMING
DOUG J. Peterson
Attorney General
STATE OF NEBRASKA
JEFF LANDRY
Attorney General
STATE OF LOUISIANA
PETER F. NERONHA
Attorney General
STATE OF RHODE ISLAND
MIKE HUNTER
Attorney General
STATE OF OKLAHOMA
MARK BRNOVICH
Attorney General
STATE OF ARIZONA
KWAME RAOUL
Attorney General
STATE OF ILLINOIS
KATHY JENNINGS
Attorney General
STATE OF DELAWARE
DANA NESSEL
Attorney General
STATE OF MICHIGAN
WILLIAM TONG
Attorney General
STATE OF CONNECTICUT
MARK R. HERRING
Attorney General
STATE OF VIRGINIA
ALAN WILSON
Attorney General
STATE OF SOUTH CAROLINA
CLARE E. CONNORS
Attorney General
STATE OF HAWAI‘I
TIMOTHY C. FOX
Attorney General
STATE OF MONTANA
28
WAYNE STENEHJEM
Attorney General
STATE OF NORTH DAKOTA
HERBERT H. SLATTERY III
Attorney General
STATE OF TENNESSEE
DAVE YOST
Attorney General
STATE OF OHIO
STEVE MARSHALL
Attorney General
STATE OF ALABAMA
ELLEN ROSENBLUM
Attorney General
STATE OF OREGON
KEVIN G. CLARKSON
Attorney General
STATE OF ALASKA
KARL A. RACINE
Attorney General
DISTRICT OF COLUMBIA
LETITIA JAMES
Attorney General
STATE OF NEW YORK
SEAN D. REYES
Attorney General
STATE OF UTAH
HECTOR BALDERAS
Attorney General
STATE OF NEW MEXICO
PATRICK MORRISEY
Attorney General
STATE OF WEST VIRGINIA
AARON M. FREY
Attorney General
STATE OF MAINE
JOSH D. SHAPIRO
Attorney General
STATE OF PENNSYLVANIA
MAURA HEALEY
Attorney General
STATE OF MASSACHUSETTS
ERIC S. SCHMITT
Attorney General
STATE OF MISSOURI
JOSH STEIN
Attorney General
STATE OF NORTH CAROLINA
XAVIER BECERRA
Attorney General
STATE OF CALIFORNIA
THOMAS J. DONOVAN
Attorney General
STATE OF VERMONT
KEITH ELLISON
Attorney General
STATE OF MINNESOTA
JOSH L. KAUL
Attorney General
STATE OF WISCONSIN
29
DANIEL CAMERON
Attorney General
STATE OF KENTUCKY
CHRISTOPHER M. CARR
Attorney General
STATE OF GEORGIA
ASHLEY MOODY
Attorney General
STATE OF FLORIDA
LAWRENCE WASDEN
Attorney General
STATE OF IDAHO
GURBIR S. GREWAL
Attorney General
STATE OF NEW JERSEY
GORDON MACDONALD
Attorney General
STATE OF NEW HAMPSHIRE
TOM MILLER
Attorney General
STATE OF IOWA
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