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Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion. Article II includes only the instruction to each State to appoint, in whatever way it likes, as many electors as it has Senators and Representatives (except that the State may not appoint members of the federal government). The Twelfth Amendment then tells electors to meet in their States, to vote for President and Vice President separately, and to transmit lists of all their votes to the President of the United States Senate for counting.
When Americans cast ballots for presidential candidates, their votes actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns. The States have devised mechanisms to ensure that the electors they appoint vote for the presidential candidate their citizens have preferred. With two partial exceptions, every State appoints a slate of electors selected by the political party whose candidate has won the State’s popular vote. Most States also compel electors to pledge to support the nominee of that party. Relevant here, 15 States back up their pledge laws with some kind of sanction. Almost all of these States immediately remove a so-called “faithless elector” from his position, substituting an alternate whose vote the State reports instead. A few States impose a monetary fine on any elector who flouts his pledge.
Three Washington electors, Peter Chiafalo, Levi Guerra, and Esther John (the Electors), violated their pledges to support Hillary Clinton in the 2016 presidential election. In response, the State fined the Electors $1,000 apiece for breaking their pledges to support the same candidate its voters had. The Electors challenged their fines in state court, arguing that the Constitution gives members of the Electoral College the right to vote however they please. The Washington Superior Court rejected that claim, and the State Supreme Court affirmed, relying on Ray v. Blair, 343 U. S. 214, 72 S. Ct. 654, 96 L. Ed. 894. In Ray, this Court upheld a pledge requirement—though one without a penalty to back it up. Ray held that pledges were consistent with the Constitution’s text and our Nation’s history; but it reserved the question whether a State can enforce that requirement through legal sanctions.
May a State enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President?
In a case involving three Washington electors who violated their pledges in the 2016 presidential election, a State was allowed to penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State’s popular vote as nothing in the Constitution expressly prohibited States from taking away presidential electors’ voting discretion. Specifically, U.S. Const. art. II, § 1, and the Twelfth Amendment gave the States broad power over electors and gave the electors themselves no rights. Pledge laws, such as Washington's, that sanctioned an elector for breaching his promise were in accord with the Constitution.