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Can State Leges Steal The Election?

The holding was that state legislatures had the authority to punish and remove “faithless electors,” the people who were putatively “elected” to the electoral college to fulfill the will of the people of a state by casting their ballot for the candidate chosen by their state’s voters. In 2016, there was a push to get electors to be something other than conduits for the voters, but to vote for the “right” candidate.

The cases that led to the decision involved electors in 2016 who had voted contrary to their pledge. Recognizing that Hillary Clinton, the winner of the popular vote, would not be elected president, these electors worked to rally enough Republican and Democratic electors to vote for a Republican candidate other than Donald Trump, thus throwing the election into the House of Representatives.

Three electors from the state of Washington cast their votes for Colin Powell, the former secretary of State, rather than for Mrs. Clinton, who won the popular vote there. Mrs. Clinton also won the popular vote in Colorado, where one elector attempted to vote for John Kasich, the former Ohio governor who had run for the Republican presidential nomination that year. Those electors were punished by their states with fines and removal as electors. They challenged that punishment in the Supreme Court.

In a unanimous opinion written by Justice Kagan in 2020, the Supreme Court ruled for the states, that there was no right to be a faithless elector and the state had the authority to remove any elector who refused to vote as the state, via the state’s voters, commanded.

Harvard law prof Larry Lessig, who represented the faithless electors before the Supreme Court, argues that this decision opens a loophole that has received no scrutiny, but would allow a state legislature to pick its preferred candidate and direct its electors to vote for him or her.

The danger now is that this decision has created an obvious strategy for a state legislature seeking to ensure the election of its preferred candidate, regardless of how the people voted. The state legislature would pass a law that requires electors to vote as the legislature directs. The default would be that electors vote as the people voted. But the law would reserve to the legislature the power to direct electors to vote differently if it so chooses.

How would that be? By what authority would state legislatures ignore the vote of their citizens and command the electors to vote for the candidate chosen by the lege?

Now imagine the election results in a state are close. Charges of fraud cloud a recount. Leaders in the state legislature challenge the presumptive result. In response to those challenges, the legislature votes to direct their electors to cast their ballots for the candidate who presumptively lost but whom the legislature prefers. Any elector voting contrary to the legislature’s rule would be removed and replaced with an elector who complied.

If this explanation seems awfully sketchy, that’s because it is. While it may be possible for an election to be clouded by charges of fraud, whether warranted or imagined, in what way does that magically morph into the lege ignoring the vote and simply doing as it pleases? If there are charges of fraud, then investigate and determine whether there was fraud, and whether the fraud was sufficient to alter the outcome of the election. If not, problem solved. Being “clouded” is meaningless. Anyone can make charges, but it’s the evidence that matters, not the wild accusations.

But more to the point, even if there was actual evidence that threw an election into doubt, what would make the ruling in Chiafalo v. Washington be understood to authorize state legislatures to simply override the election, pick a winner and then compel the state’s electors to vote the legislators’ choice?

Article II, §1’s appointments power gives the States far reaching authority over presidential electors, absent some other constitutional constraint. As noted earlier, each State may appoint electors “in such Manner as the Legislature thereof may direct.” Art. II, §1, cl. 2; see supra, at 2. This Court has described that clause as “conveying the broadest power of determination” over who becomes an elector. McPherson v. Blacker, 146 U. S. 1, 27 (1892). And the power to appoint an elector (in any manner) includes power to condition his appointment—that is, to say what the elector must do for the appointment to take effect.

There is little question that the state legislatures have the authority to decide the manner in which state electors are chosen and the qualifications required of an elector. Indeed, the state can authorize electors to exercise their discretion in casting their ballot, such that they can vote for someone other than the candidate for whom they’re committed, if that’s what state law permits. In Washington, the law made no provision for the exercise of discretion, leaving faithless electors dangling in the political wind.

But the manner of choosing electors is a world apart from choosing electors committed to voting for the candidate chosen by citizens, or even exercising their personal discretion, and being ordered, post hoc, to vote for the candidate as ordered by the legislature, citizens be damned. While it may be worthwhile to consider whether there are loopholes yet to be exploited that could be used by nefarious legislators to steal a presidential election, and the outcome, as Lessig ably argues, would be ruinous to our national fabric of democracy, there needs to be a far more cogent argument to be proffered before getting all worked up about it.

The more effective strategy to avoid this result would be for political leaders to reaffirm the principle that should guide every policy adopted by the states: that the electoral results in a state should track the will of the people, not the partisans who command a majority in the legislature.

While this is obviously true, does the Chiafalo decision create a loophole that could enable a faithless legislature to reject the vote of its citizens and install electors who would vote as it commands? If there is a case to be made, Lessig didn’t make it.

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