Kanye West, Arizona, federalism, and party disaffiliation statutes in presidential elections

I haven’t weighed in much on the Kanye West presidential run since mid-July because, well, I haven’t much of legal interest to write. There have been some typical ballot access issues and some petitioning challenges. He’s gotten ballot access in a few places but not most others, and he’s been kicked off the ballot in several places. He’s not running a “serious” campaign, as I indicated in July. And so I haven’t spent much effort thinking about it.

But the challenge in Arizona to Mr. West’s candidacy piqued my interest, because a district court got the law, in my view, quite wrong.

Arizona law provides under Section 16-341, “Any qualified elector who is not a registered member of a political party that is recognized pursuant to this title may be nominated as a candidate for public office otherwise than by primary election or by party committee pursuant to this section.” (Emphasis added.) Mr. West is apparently a registered Republican in Wyoming. Plaintiffs sought to exclude Mr. West from the ballot by arguing that he sought ballot access through a nonpartisan route, which is forbidden if he’s a Republican. The district court agreed, saying that the “most sensible reading” of the statute is that Mr. West is a Republican.

But when we register to vote and affiliate with a political party, we do not affiliate with a “national” party. We affiliate with a state party. In Arizona, there is a Republican Party, recognized under Arizona law, with its headquarters in Arizona. But Mr. West is registered with the Republican Party of Wyoming, not of Arizona. Wyoming’s Republican Party is not recognized under Arizona law.

True, the Republican Party of Arizona holds a presidential nominating primary to send delegates to the Republican National Convention. And true, this November, the Republican Party of Arizona, like the other Republican Parties throughout the country, will name Donald Trump and Mike Pence as their presidential ticket. But how the state parties affiliate with the national apparatus is a different question.

Maybe this seems too cute by half, but it’s a testament to how presidential elections just look different. For instance, Minnesota doesn’t have a “Democratic Party.” It has a Democratic-Farmer-Labor Party, but it’s affiliated with the national Democratic Party and participates in the Democratic National Convention.

We might want a disaffiliation statute if you’re an Arizona Republican running for an nonpartisan slot for, say, Congress or the state legislature. The Supreme Court in Storer v. Brown upheld such a requirement to protect the interests of the political party from sham candidacies or party raiding. But for presidential tickets, however, we’d need more express statutory clarity—at least, I think so, and my reading of the statute, I think, is the more persuasive view.

Puzzles when crossing state lines in election contests is hardly a novel problem. In 2015 in Arizona, for instance, a court threw out a criminal conviction for someone accused of voting twice, once in Arizona and once in Colorado. The court noted that the defendant hadn’t voted twice under the statute—the statute applied to Arizona elections, not other states’ elections.

It might be too late for an appellate court to correct this misunderstanding of state law. I don’t know whether Mr. West would appeal, or if there are other bases for throwing out his petition. But it’s simply to point out, I think, that disaffiliation statutes simply look different in presidential elections with out-of-state candidates.

UPDATE: On September 8, the Arizona Supreme Court affirmed the exclusion of Mr. West from the ballot, but not on this basis, which is good news. That said, it does appear that the Court used a novel rule previously inapplicable to other candidates, which may be its own problem….

Proportional representation not required in union representation under guarantee of "fair and democratic elections"

That’s the finding from the First Circuit in its recent decision in Conille v. Council 93. The challengers sought equal (something akin to “one person, one vote” or proportionate representation in the makeup of elected vice presidential positions. While some of the selection of representatives were not in dispute, here’s how the court framed the mechanics of the disputed election mechanism:

To choose the vice presidents, Council 93's constitution divides the locals into thirteen legislative districts -- nine geographic and four organizational. These legislative districts do not have independent governing bodies; rather, they function solely as a way to divide delegates to nominate and elect members of the executive board. The Council 93 constitution allocates a specific number of vice president positions to each legislative district. The number allocated to each district bears little, if any, relationship to the number of members in that district. Rather, the allocations are artifacts of agreements made over time as locals have joined the Council. For example, a single vice president is chosen by the delegates representing over 1,800 members in the Vermont district, while four vice presidents are chosen by the delegates representing 1,500 employees in a “Department of Mental Health” legislative district. It is this type of disproportionality that triggers plaintiffs' displeasure.

The core of the dispute turns on construction of terms in the union’s constitution, and courts defer to the union’s interpretation, so winning a “one person, one vote” or proportionality claim would be difficult. But here’s the court’s analysis:

In the alternative, plaintiffs contend that the structure of Council 93's Executive Board violates the AFSCME constitution, particularly Paragraph 4 of its “Bill of Rights,” which provides that “[m]embers shall have the right to fair and democratic elections, at all levels of the union. This includes due notice of nominations and elections, equal opportunity for competing candidates, and proper election procedures which shall be constitutionally specified.”

. . .

The merits of plaintiffs' claim under the AFSCME constitution turns on the question of the proper interpretation of Paragraphs 4 and 7 of the constitution's Bill of Rights. When reviewing a union's interpretation of its own constitution, we defer to that interpretation unless it is plainly unreasonable. . . .

We begin with the constitution's text . . . noting at the outset the absence of any express guarantee of equal or proportional representation on its executive board or on any of its or its subsidiaries' governing bodies, including the subsidiaries' executive boards. This silence contrasts with the text of paragraph 7 of the AFSCME Bill of Rights, which states that “[a]ll members shall have an equal right to vote and each vote cast shall be of equal weight” specifically on issues pertaining to the collective bargaining of contracts, memoranda of understanding, agreements affecting members' wages, hours, or any other terms of employment. The union thus knew precisely how to require equally weighted votes on an issue within the constitution if it wished to do so; instead, it chose to use only the term “fair and democratic” when referring to how elections of its officers must be conducted.

So, we ask if this term by itself renders supererogatory the need to include explicitly the right to proportional representation or an equal vote. See Ramos v. Louisiana, ––– U.S. ––––, 140 S. Ct. 1390, 1400, 206 L.Ed.2d 583 (2020) (suggesting that, with respect to certain rights, the absence of an explicit grant of that right in the text of the Constitution does not imply the right does not exist, but rather, supports the inference that the right “was so plainly included” that stating it explicitly would be “surplusage”).

We think that it does not. We can assume the term “democratic,” by itself, implies a relatively equal right to vote on such matters as one is entitled to vote on, but it is too much of a stretch to say that it must also imply proportional representation on the executive board. The United States is generally considered to be a democracy in normal parlance, notwithstanding the effectively disproportionate representation in the Senate and the Electoral College. See Lyman v. Baker, 954 F.3d 351, 371 (1st Cir. 2020) (“The United States' system of representative democracy [includes] ... the Electoral College and ... Senate.”). Similarly, the term “fair” may suggest some restraint on the procedures used for voting. Paragraph 4 thus requires, as examples, “due notice of nominations and elections, equal opportunity for competing candidates, and proper election procedures which shall be constitutionally specified.” While this list is non-exhaustive, it would have been rather simple for the union to include within it the requirement of equal or proportional representation on all governing bodies, as it did in Paragraph 7 for labor concerns and within this paragraph for competing candidates. Yet, it did not.

The defendants' position that the voting system used to select officers of Council 93's executive board is fair finds further support in the fact that those procedures themselves are approved and subject to change by the convention, in which voting is weighted just as plaintiffs would have it be -- proportionate weight is assigned to the votes of convention delegates based on the number of members represented.

Moreover, the actual behavior being challenged is not precisely an undemocratic or unfair election as a result of an unequally weighted vote. In choosing delegates to the Council 93 convention, union member votes are weighted equally, and these conventions, like a parliament, carry out many of the important legislative powers of the union. Similarly, the five senior officers on Council 93's executive board are chosen according to an equally weighted vote of convention delegates, in much the way that a prime minister might be chosen by a parliament composed of equally weighted votes. It is only the selection of vice presidents to represent the legislative districts that is being challenged.

We have a difficult time saying that the members' right to “fair and democratic elections” necessarily guarantees equal representation on this subordinate body of executive officials. That a cabinet may be made up of appointed officials who do not proportionally reflect the full constituency does not mean that the underlying election was not fair and democratic. The constitutional clause at issue here guarantees only that, when members vote, the process is fair and democratic. The plaintiffs have not contended that their actual elections are otherwise, only that every officer must proportionally represent the constituency. As to that contention, they point to nothing in their constitution that imposes that requirement on Council 93 or any of AFSCME's subordinate bodies.

AFSCME itself also allocates seats and voting for positions on its own executive board in a manner that belies equal representation of every union member, as plaintiffs concede. Although plaintiffs suggest that the ASFCME executive board is somehow more proportional because it is a “hybrid house-senate-like” system, this is nothing more than a particular type of disproportionality. And plaintiffs do not offer any basis in the AFSCME constitution to suggest how much proportionality is enough to be “fair and democratic.” One would expect to find some good reason why AFSCME would view its constitution as outlawing a practice by the Council that it allows itself. Plaintiffs offer no such reason, and we are not willing to create one sua sponte, especially where we are to defer to AFSCME's reasonable interpretations of its constitution. . . . cf. Coleman v. Miller, 307 U.S. 433, 454-55, 59 S.Ct. 972, 83 L.Ed. 1385 (1939) (holding that a “lack of satisfactory criteria for a judicial determination,” inter alia, favors deference to other bodies in deciding what counts as a “Republican Form of Government”).

Of course, the district court reasoned that the voting structure need not be precisely proportional but should at least have “some neutral principle that justifies weighted voting,” and it found no such rationale besides a “hodge-podge of historic deals.” But negotiation and deal-work are the very heart of what unions do. In fact, plaintiffs imply the need to allow unions to make such compromises by suggesting that AFSCME's executive board representation is not problematic because it is like the U.S. House and Senate, which itself is nothing more than an historic deal. See Ronald J. Krotoszynski, Jr., Reconsidering the Nondelegation Doctrine: Universal Service, the Power to Tax, and the Ratification Doctrine, 80 Ind. L.J. 239, 252 (2005) (discussing how the apportionment of seats in the U.S. House and Senate was part of a complicated “deal” involving the balance of power between competing factions). While we recognize that Council 93 is constrained in the deals it can negotiate by the AFSCME constitution, we are hesitant to retroactively read the terms “fair and democratic” to invalidate the bargained-for exchanges that the union members agreed to over the years, especially when AFSCME has made no indication that it believes the term carries such weight and has opted not to restrict its councils in this way. If AFSCME had wanted to tie the hands of its councils in this matter, it certainly could have stepped in and chosen not to approve the provisions in the Council 93 constitution incorporating these deals. Its acquiescence is entitled to some consideration.

Details of the Biden campaign's concerns about Tammy Duckworth's eligibility as a "natural born citizen"

From this New York Times deep-dive:

Other candidates rose and faded in the process: Senator Tammy Duckworth of Illinois powerfully impressed Mr. Biden’s search team, but his lawyers feared she would face challenges to her eligibility because she was born overseas.

…

Ms. Duckworth was regarded by Biden advisers as among the candidates likeliest to help him achieve a smashing electoral victory in November. But legal advisers to the campaign expressed urgent concern that Ms. Duckworth could face challenges to her nomination in court: She was born overseas, to an American father and a Thai mother. While Mr. Biden’s team believed Ms. Duckworth was eligible for national office, campaign lawyers feared that it would take just one partisan judge in one swing state to throw the whole Democratic ticket off the ballot.

I don’t have strong thoughts on the merits of whether Ms. Duckworth is a “natural born citizen.” And even if 2020 was relatively quiet on natural born citizen challenges (until recently!), it’s interesting to see the political process play out here.

I’ve highlighted that there are several bodies that can ascertain candidate eligibility outside the judiciary: the voters, presidential electors, and Congress. Political parties are a good addition. But perhaps it’s worth adding a category for vice presidential candidates, as the nominee and his team can make judgment calls about eligibility, too.

But, disappointingly, the campaign lawyers made a pessimistic call. My work strongly resists the call for other bodies—particularly judges—to review candidate eligibility. Indeed, I’ve written extensively about that. I think many times there are not rules in place to even allow courts to review a candidate’s qualifications. A declaration from Congress could go a long way to ensure that a candidate’s eligibility is not questioned elsewhere. I think most states don’t have statutes in place to authorize review of candidate qualifications, and, indeed, I think they shouldn’t. And there’s always appellate review—granted, one challenge of late-breaking litigation (like naming a vice presidential candidate in August when ballot printing begins in a matter of weeks) increases risk and uncertainty.

Furthermore, it’s also a fundamental weakness of the National Popular Vote. Could one state exclude a candidate from the ballot? And if so, doesn’t that throw off the “national” popular vote total? Absolutely.

In short, it’s a highly cautious, litigation-avoidance strategy that kept (at least in part) Ms. Duckworth off the ballot. It’s worth considering whether a veepstakes that took place earlier could have successfully resisted litigation that might have challenged her eligiblity.

Justice Kavanaugh mentions allocation of power over elections in Calvary Chapel dissent

I’m a little late to this (as I’ve been in the midst of a cross-country move!), but I wanted to highlight a passage from Justice Brett Kavanaugh’s dissenting opinion in Calvary Chapel v. Sisolak. The case was about whether regulations opening some businesses but not allowing churches to open were permissible, which I won’t rehash here. But I did want to highlight one portion of his dissenting opinion:

I agree that courts should be very deferential to the States’ line-drawing in opening businesses and allowing certain activities during the pandemic. For example, courts should be extremely deferential to the States when considering a substantive due process claim by a secular business that it is being treated worse than another business. Cf. Jacobson v. Massachusetts, 197 U. S. 11, 25–28 (1905). Under the Constitution, state and local governments, not the federal courts, have the primary responsibility for addressing COVID–19 matters such as quarantine requirements, testing plans, mask mandates, phased reopenings, school closures, sports rules, adjustment of voting and election procedures, state court and correctional institution practices, and the like.

(Emphasis added.) Professor Josh Blackman highlighted that this mention of elections was “not inadvertent.”

This is not a gloss on any notion of the Purcell principle, which says that federal courts should be particularly reluctant to issue orders affecting elections close in time to the election that may result in voter confusion. Earlier this spring in RNC v. DNC, it figured prominently (if disputably).

But those timing-based concerns are different from the recognition that “state and local governments, not the federal courts, have the primary responsibility.” The default power over the times, places, and manner of holding congressional elections is left with the states, unless the federal government chooses to enact legislation on the topic. For state elections, there’s even less for the federal government to do. And while the federal courts have increasingly relied on the Anderson-Burdick framework as a kind of catch-all opportunity for federal review of election rules, some federal courts have begun to push back. Justice Kavanaugh’s inclusion of this phrase suggests a similar reluctance.

Justice Kagan wrote on behalf of eight justices—not seven—in Chiafalo v. Washington

I’ve seen several versions of the claim that Justice Elena Kagan’s opinion in Chiafalo v. Washington was “on behalf of seven justices,” with Justice Clarence Thomas concurring in the judgment, joined in part by Justice Neil Gorsuch.

That’s not accurate. Justice Kagan’s opinion is on behalf of eight justices, all but Justice Thomas. This comes from the case syllabus:

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined as to Part II.

Admittedly, one’s eyes might glaze over the caption to see that Justice Thomas concurred in the judgment, in which Justice Gorsuch joined, and conclude that Justice Gorsuch did not join Justice Kagan’s opinion. But according to the case caption, he joined Justice Kagan’s opinion in full, and he joined part of Justice Thomas’s opinion.

This is a curious move, to say the least, and feels a little belt-and-suspenders for Justice Gorsuch. Justice Kagan’s opinion relies on states having power under Article II and the Twelfth Amendment, which “give[s] States broad power over electors.” Justice Thomas’s opinion relies on states having power under the Tenth Amendment: “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.” He continues, “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.”

Justice Gorsuch didn’t join Justice Thomas’s part of the opinion describing Article II and the Twelfth Amendment as simply an obligation on the states rather than a source of power to the states. So he might agree that there’s power in Article II and the Twelfth Amendment, and he wants to emphasize the structural point of the Tenth Amendment.

But there might be another reason. Might. Justice Gorsuch might have sought to protect this line of Justice Thomas’s opinion from attack by Justice Kagan’s majority opinion, which did, after all, secure eight justices. Justice Kagan did attack Part I of Justice Thomas’s opinion, but she didn’t make any mention of the Tenth Amendment—and for that, Justice Gorsuch could join in full. Indeed, it might be a reason why Justice Gorsuch didn’t need to identify a separate endorsement for Justice Thomas’s position in Baca. It preserves a line of Tenth Amendment reasoning for future cases that hasn’t been expressly dismissed by a majority of the Court.

Maybe it’s too much speculation at this point. But the opening point of this post still remains—eight justices, not seven, joined in the principal opinion in Chiafalo.

 I revised the title because the post was confusing. My apologies!

A puzzle to consider in Colorado Department of State v. Baca

The two “faithless elector” cases were originally consolidated to be heard together. But Justice Sonia Sotomayor late in the process discovered she knew one of the parties in the Colorado case and withdrew. That may have been a fortuitous act and provided a clean opinion in Chiafalo v. Washington—and the per curiam opinion in Colorado Department of State v. Baca gives us a hint why.

Many have focused on the substantive difference between the Washington and Colorado laws—Washington counts a faithless vote but fines faithless electors; Colorado does not count a faithless vote and replaces a faithless elector.

But there were material procedural differences, too—specifically, multiple material problems with the Colorado plaintiffs’ case in Baca. In Washington, the electors were fined and contested that in state court. Easy injury to provide (a $1000 fine), easy remedy to seek, easy cause of action to raise.

In Colorado, however, plaintiffs faced several challenges. Were their claims moot? Could they sue a state under Section 1983—or, really, could the state waive this argument when sued for damages?

At oral argument in Baca, Justice Stephen Breyer in particular with concerned about these procedural wrinkles in the Colorado case. Justice Samuel Alito and Neil Gorsuch also raised versions of such concerns.

Now, because Justice Sotomayor was recused from Baca, the principal case became Chiafalo, because all nine justices could participate. Eight justices joined Justice Elena Kagan’s opinion; Justice Clarence Thomas concurred in the judgment, which Justice Gorsuch joined in part.

Now, to the entirety of the Court’s per curiam opinion in Baca:

PER CURIAM.

The judgment of the United States Court of Appeals for the Tenth Circuit is reversed for the reasons stated in Chiafalo v. Washington, ante, p. ___.

It is so ordered.

JUSTICE SOTOMAYOR took no part in the decision of this case.

JUSTICE THOMAS concurs in the judgment for the reasons stated in his separate opinion in Chiafalo v. Washington, ante, p. ___.

I looked at this opinion a few times wondering what happened. Specifically, what happened to Justice Gorsuch? He agreed with Justice Thomas’s Tenth Amendment argument in Chiafalo. What about here? Is the Tenth Amendment no longer in play?

And then I considered another possibility—as a per curiam opinion, we don’t see the lineup of justices. Some justices may not agree with the outcome but may choose not to note their dissenting opinion. It might be the case that Justice Gorsuch (and perhaps another, like Justice Breyer) didn’t agree to reverse for the reasons stated in Chiafalo. It might be that the procedural wrinkles would have been a reason to reverse, but they opted not to publicize that here and now, saving the issue for another day.

I don’t know. I would, however, resist the urge to call Baca a “unanimous” decision of the Court. It certainly appears unanimous. But there are reasons to think that some of the procedural wrinkles would lead some members of the Court to come out differently if they couldn’t hide behind the per curiam opinion here.

Avoiding the temptation to overread Chiafalo v. Washington

I’ve taken a day to chew over the Supreme Court’s decision in Chiafalo v. Washington, the “faithless electors” case. I’ve read a lot of commentary and talked to a lot of people who’ve wondered about broader implications of this case. My reaction is: it might be best not to overread this case.

This is, in one sense, an extraordinary case, but in another, and perhaps more significant, sense, a narrow case. The case is really about one set of facts: the state power to penalize or replace electors who cast a vote contrary to statewide popular vote winner.

I think some of the Court’s language could plausibly be used in other contexts. For instance, when it talks about the “State’s popular vote,” could that preclude a pledge for the national popular vote winner? Maybe—but, then again, maybe because that’s the way states do it now, and that’s what Washington and Colorado do, so that’s the language used. When the Court says that the Equal Protection Clause binds legislative decisionmaking, does that mean the legislature no longer has the power to select electors itself? Maybe—but, then again, the Court elsewhere favorably cites the deferential approach in McPherson v. Blacker. Could Congress be bound by the Court’s reasoning? Maybe—but, then again, it favorably cited “Congress’s deference to a state decision” elsewhere.

In short, my instinct in a decision with an eight-justice majority is to closely heed the narrow holding—states, I think, are free to run with statutes that bind presidential electors—and to loosely consider the Court’s reasoning for later application. It might be persuasive to a five-justice majority considering a later issue, but it’s just as easily distinguishable for some of the reasons I identified. The context matters, and the context here—again, while extraordinary—is narrow. So, in short, the reasoning is as persuasive to later courts as later courts deem it—no more, no less, and, really, hardly binding. The “mays” are just mays, not musts.

That’s my sense of how to read this case, anyway.

Weaponizing the ballot: voters sue to keep candidate off ballot for unpaid campaign finance fines

Richard Winger over at Ballot Access News has the details about a lawsuit filed in federal court challenging a candidate’s appearance on the ballot. Brenda Jones, a former member of Congress, is challenging incumbent Rashida Tlaib in the Democratic Party primary in a congressional district in Michigan. Plaintiffs in this lawsuit claim Ms. Jones falsely attested that she had no unpaid campaign finance fines, when she apparently did.

In Weaponizing the Ballot, I emphasize that even fairly light restrictions on a candidate’s ballot access that do not pertain to the “manner” of holding an election—that is, procedural rules pertaining to an election—would run afoul of the Constitution’s enumerated qualifications for federal office and exceed a state’s power under the Elections Clause. The claim holds here, in my view—the lawsuit should fail, and Ms. Jones (whose name already appears on the ballot—plaintiffs ask that votes cast for her not be counted) should be able to seek office unencumbered by the Michigan statute.

Analysis of the Supreme Court's decision in the "faithless electors" cases

The Supreme Court has issued its decision in Chiafalo v. Washington and Colorado Department of State v. Baca. The primary opinion in Chiafalo is here. A brief per curiam in Baca is here. Justice Elena Kagan wrote the principal opinion joined by all justices except Justice Clarence Thomas; Justice Thomas filed an opinion concurring in the judgment, joined by Justice Neil Gorsuch in part. The power of the state to regulate “faithless electors”—either fining them or replacing them—was affirmed.

In Chiafalo, three electors cast votes for Colin Powell for president and assorted candidates for vice president instead of Mrs. Clinton and Tim Kaine. Congress counted those votes for Mr. Powell. Those electors were each ultimately fined $1000.

In Baca, an elector who attempted to cast a vote for John Kasich for president instead of Hillary Clinton was deemed to have vacated his office. He was replaced, another elector voted for Mrs. Clinton, and that vote was counted in Congress. (Justice Sonia Sotomayor was recused from this case because she had a friendship with one of the parties.)

Justice Kagan’s opinion relies heavily in part on Ray v. Blair, the 1952 Supreme Court decision that permitted states to require a pledge to support the candidate, but it reserved on the enforceability of that pledge. The “longstanding practices” of electors weighed against the challengers in Ray v. Blair, and it’s the same here in Chiafalo. Justice Kagan’s opinion also relies on the NLRB v. Noel Canning decision (slip op. at 13) to emphasize longstanding practices.

Justice Kagan’s decision really relies on a phrase she notes on p.10 of the slip opinion, “The Constitution is barebones about electors.” This gives states broad power over electors.

Justice Kagan is less than impressed with the argument that “vote” or “ballot” necessarily implies choice. She explains, “But those words need not always connote independent choice. Suppose a person always votes in the way his spouse, or pastor, or union tells him to. We might question his judgment, but we would have no problem saying he 'votes' or fills in a 'ballot.'" (Slip op. at 11, with more onto 12.)

Justice Kagan also situated the Twelfth Amendment as an important qualification to the original understanding of the scope of elector discretion. She emphasized, “The Amendment thus advanced, rather than resisted, the practice that had arisen in the Nation’s first elections,” that is, party-line voting. (Slip op. at 14-15.)

Congressional deference matters some, but not the way the electors suggested: “Congress’s deference to a state decision to tolerate a faithless vote is no ground for rejecting a state decision to penalize one.” (Slip op. at 17.)

To my mind, of note includes footnote four, which provides, “And if a State adopts a condition on its appointments that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause.” That’s a view suggested in Term Limits v. Thornton and which I get at in Weaponizing the Ballot, about whether states have the power to add qualifications to presidential candidates—yes, there’s a “may,” but the suggestion continues that states may not do so.

Footnote eight also concedes questions about how to handle candidates who die between Election Day and the meeting of the Electoral College. In my mind, there are interesting Twentieth Amendment questions in such circumstances, too, that may lessen the concern—but, as the Court notes, it’s not something for the Court to confront at this time.

Justice Thomas filed an opinion concurring in the judgment, joined in part by Justice Gorsuch. Justice Thomas returned to his dissenting opinion in Term Limits v. Thornton (1995)—he views the Constitution’s elections clauses not as granting power to a state, but requiring states to perform a duty. He returned to a more vigorous view of the Tenth Amendment (this is the portion of the opinion Justice Gorsuch joined). The Constitution’s silence on the power to control electors should lean toward the state’s reserved powers under the Tenth Amendment to regulate them. His views didn’t carry the day, obviously, but they do get to the same place as the majority opinion.

In short, all nine justices agreed that states may fine faithless electors or replace them. I anticipate more states will enact statutes doing so just in the years ahead.

This post has been updated.

Related reading:

No, the Electoral College will not give the presidency to Hillary Clinton, Nov. 13, 2016

New effort (doomed to fail) calls for presidential electors to collectively exercise independent judgment, Dec. 6, 2016

The Electoral College won’t stop Trump—but it may change how political parties pick electors in 2020, Dec. 11, 2016

Faithless electors: Now it’s up to Congress, Wall St. J., Dec. 21, 2016

Status of 2016 faithless presidential elector litigation, Dec. 19, 2017

Washington State Supreme Court upholds finds for 2016 faithless electors, May 23, 2019

Analysis: 10th Circuit finds Colorado wrongly removed faithless presidential elector in 2016, Aug. 21, 2019

Why “faithless electors” have little power to change the winner of presidential elections, Oct. 14, 2019

Symposium: Leave courts out of presidential elector dispute, SCOTUSblog, Apr. 20, 2020

Brief of Professor Derek T. Muller as amicus curiae in support of neither party, Chiafalo v. Washington & Colorado Department of State v. Baca

Oral argument analysis: Will the Tenth Amendment make a comeback in the faithless electors cases?, May 13, 2020