Donald Trump
Credit: Michael Vadon/Flickr

Earlier this week, in a New York Times op-ed, Texas presidential elector Chris Suprun announced that he would not be casting his vote for Donald Trump. Even though Texas voters chose Trump, Suprun—along with a small group of electors from around the country calling themselves “Hamilton Electors”—will vote for a yet-to-be-identified compromise Republican. As Suprun explained in his op-ed, and as I and others have detailed elsewhere, Donald Trump’s conduct since the election has demonstrated that he is dangerously unqualified and unfit to be president.

Can electors legally do this? While the nearly universal expectation is electors’ votes will reflect the popular vote in their states, the Constitution doesn’t require them to. As others have explained, Alexander Hamilton’s justification for the Electoral College in Federalist No. 68 shows that the Framers intended for electors to exercise their own judgment when necessary.

Many states, however, have laws that prohibit these so-called “faithless electors” (perhaps a better term would be “conscientious electors”) from bucking the state popular vote. This week, two electors filed suit in federal court arguing that Colorado’s version is unconstitutional. (Hillary Clinton won Colorado, but the plaintiffs hope that a victory in their lawsuit will effectively invalidate all such laws, allowing electors in Trump states to defect.) In addition to arguments based on the Framers’ intent, there is a strong argument based on constitutional structure and text, and on Supreme Court precedent, that these electors should prevail.

The Constitution gives the states authority over how to choose electors. Article II, Section 1 provides that “[e]ach State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors…” But the Constitution does not authorize states to tell the electors, once selected, how to vote.

The Twelfth Amendment, which was ratified in 1804, spells out the electors’ duties in more detail. And it, too, defines the duties of electors without giving the states or state officials any role in defining or enforcing those duties. “The Electors shall meet in their respective states, and vote by ballot for President and Vice-President …,” it says, and then goes on to explain that the electors should each cast two ballots: one for president and one for vice president. The electors, and only the electors, are directed to count, certify, and seal their votes, and to send the results directly to Washington. This allocation of responsibilities suggests that the Framers wanted to insulate the electors from the states’ influence or interference once they are appointed.

A federal statute fills in some of the procedural gaps in the instructions to the electors. Congress enacted the first version of the statute in 1792, and amended it in 1804 after the ratification of the Twelfth Amendment, so it may provide some insight into what the Framers were thinking. The statute divides responsibilities precisely as the Constitution does: it calls for states to appoint electors but gives them no role after electors are appointed.

The Supreme Court often treats such precise constitutional assignments of authority and responsibility as evidence that the power was meant to be carefully cabined. For example, when it comes to the election and eligibility of members of Congress, the Supreme Court has refused to allow Congress or the states to exercise authority not explicitly assigned. The Constitution says that to be a member of the House of Representatives, a person must be at least twenty-five years old, have been a citizen for at least seven years, and, “when elected, be an inhabitant of that State in which he shall be chosen.” The Constitution nowhere states that these qualifications are exclusive, and it also says that “[e]ach House shall be the Judge of the … Qualifications of its own Members.” Yet, in the 1969 case Powell v. McCormack, the Supreme Court held that Congress has no power to supplement the qualifications necessary to serve in Congress. Congress can determine whether someone meets the criteria listed in the Constitution, but it can’t exclude a duly elected senator or representative for any other reason. (Each house does have the power to expel members for misconduct by a two-thirds vote, but that’s different from refusing to seat them in the first place.)

The Supreme Court reached a similar conclusion in U.S. Term Limits v. Thornton in 1995, this time in the context of state law. Arkansas had amended its state constitution to effectively impose term limits on U.S. Representatives and Senators from Arkansas. This, too, was unconstitutional, the Court held. Just as Congress cannot add to the qualifications in the federal constitution, neither can the states. In reaching this conclusion, the Court noted that the design of the Constitution implies that the people have a relationship with the national government unmediated by the states. In other words, states can have no say in who represents their residents in Congress.

Similar logic should apply to the question of state control over members of the Electoral College. The Constitution gives the states the ability to choose electors, but not to tell them what to do. In the lawsuit filed by the two Colorado electors, Colorado will likely defend its law by invoking a1952 Supreme Court case, Ray v. Blair. In Ray, the Court upheld a statute that let a state political party require its electors to pledge to vote for the party’s eventual nominee. But Ray left open the question that matters now: whether such a pledge can actually be enforced.

It may seem odd that such a pledge could be both permissible and unenforceable, but in fact that is precisely the right balance. When you vote for a candidate for president, you’re actually voting for the slate of electors associated with that candidate. The state political parties choose those electors—otherwise, there would be little reason to expect them to vote a certain way. And since the voters rarely know anything about the electors, they rely on the proxy of party when they cast their votes for president. Requiring the pledge makes it highly unlikely that an elector will do something unexpected—and that is as it should be.

But that can’t mean that the electors are precluded from voting for a different candidate under any circumstances. If it became known that a president-elect had committed a serious crime, say, or had become mentally incapacitated in some way, the Constitution would undoubtedly permit the electors to vote for someone else. We can argue about what the appropriate threshold is for exercising this discretion and whether Trump has met it, but it is inconceivable that such a threshold does not exist. Otherwise, electors would be superfluous. Whether creating the Electoral College was a good idea, it’s in the Constitution, and state law can’t nullify the Constitution.

(This argument doesn’t necessarily conflict with the movement for a National Popular Vote Interstate Compact, under which states agree to appoint electors from the party of the candidate who wins the national popular vote. So long as the compact addresses only how a state selects its electors, those electors would still be able to exercise discretion when appropriate.)

Americans hold dear the democratic principle that the people should decide who represents them. But the Electoral College is designed to allow electors to make a decision that may not be consistent with the vote of the people. (In fact, in this year’s election, the apparent Electoral College winner is not the choice of the people, as he lost the popular vote by more than 2.5 million.) In extraordinary circumstances like our current ones, where the presumptive president-elect is manifestly unfit, the electors must be free to do their constitutional duty.

Carolyn Shapiro

Carolyn Shapiro is an associate professor at IIT Chicago-Kent College of Law, where she is co-director of the Institute on the Supreme Court of the United States.