Presidential electors deserve the right to vote their conscience

When Colorado and Washington presidential electors refused to vote for either Hillary Clinton or Donald Trump in the 2016 election, state officials fined them, threatened them with criminal prosecution, and removed one elector for voting “wrong.”

Now it appears state officials exceeded their constitutional authority.

{mosads}The mistreated electors have brought lawsuits in both Washington and Colorado. They seek a court judgment that they were right all along.

Colorado and Washington state officials have resisted the suits, arguing that states may tell presidential electors how to vote. But a “friend of the court” brief filed in the Colorado case by the Denver based Independence Institute has shredded one of the officials’ key defenses.

Under the Constitution, the people do not elect the president and vice-president directly. Instead, each state appoints presidential electors, with more populous states allotted more electors than less populous states. The electors do the actual voting. Collectively, the electors are often referred to as the “Electoral College,” even though they do not form any kind of organization and never meet together in the same place.

Every state has laws allowing the people to choose its electors. Voters choose among candidates for presidential elector every four years in a November vote. The following month those chosen as electors cast formal ballots for president and vice president.

Most candidates for presidential elector announce in advance the presidential ticket they will vote for, and the overwhelming majority of electors stick to their pledges. Occasionally, an elector changes his or her mind between the November election and the formal vote in December. Most constitutional experts agree that the American founders intended the electors to have this right.

But some states have laws that punish, or even remove, presidential electors who do not vote as their state instructs. In the 2016 contest, several Democratic Party electors in Washington State were fined $1000 each for refusing to vote for Hillary Clinton. When three Democratic electors in Colorado similarly announced they would not vote for Clinton, state officials threatened them with criminal prosecution. An elector named Micheal [sic] Baca refused to be intimidated. He cast his ballot for Ohio Gov. John Kasich. State officials removed him and installed an unelected replacement who voted as she was told.

State officials argue that, whatever the founders originally intended, the Twelfth Amendment requires electors to vote as their states or political parties direct. The Colorado federal trial court hearing the case agreed with the state officials.

However, the electors have appealed, and the Independence Institute’s brief filed with the appeals court shows the Twelfth Amendment did not take away electors’ right to vote their conscience.

The Twelfth Amendment arose out of the 1800 presidential election. The contest was between the incumbent President John Adams and challenger Thomas Jefferson. Jefferson won most of the electors, who then voted for him and for his vice presidential running mate, Aaron Burr. But because the electors weren’t allowed to designate which candidate they wanted for president and which for vice president, the overall vote ended in a tie between Jefferson and Burr. Eventually, the House of Representatives broke the deadlock in favor of Jefferson.

The Twelfth Amendment was designed to head off another deadlock by requiring electors to vote for president and vice president separately. However, some constitutional writers argue the amendment also allowed states or parties to dictate how electors vote.

But as the Independence Institute brief points out, the Twelfth Amendment did not change the part of the Constitution permitting electors to vote their conscience. The brief also shows that when debating the amendment members of Congress said or implied presidential electors would continue to enjoy freedom of action. Some even argued electors were required to vote according to their best judgment.

If the presidential electors win this suit, the presidential election system is unlikely to change much. Most electors will continue to vote as pledged.

But states that now conceal the names of elector-candidates on the official ballot will face pressure to disclose that information to the voters. More importantly, a victory for the electors will strengthen a crucial safeguard in the constitutional system. It will allow electors freedom to respond if new and damaging information about a candidate surfaces between the popular vote in November and the formal vote the following month.

Robert G. Natelson is Professor of Law (ret.), The University of Montana, and Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver. He is the author of The Original Constitution: What It Actually Said and Meant, and worked on the brief mentioned in this article.