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