Judge McHugh of the 10th Circuit said the text of the Constitution also supports elector independence. The words of the relevant provisions, including “elector,” “vote” and “ballot,” she wrote, “have a common theme: They all imply the right to make a choice or voice an individual opinion.”
Justice Kagan rejected that analysis.
“Those words need not always connote independent choice,” she wrote. “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 that he ‘votes’ or fills in a ‘ballot.’”
“For that matter, some elections give the voter no real choice because there is only one name on a ballot (consider an old Soviet election, or even a downballot race in this country),” she wrote. “Yet if the person in the voting booth goes through the motions, we consider him to have voted.”
Justice Clarence Thomas, joined in part by Justice Neil M. Gorsuch, agreed with the majority’s bottom line but did not adopt its reasoning. He said he would have relied on general principles of federalism to reach essentially the same result.
Over the years, members of the Electoral College have cast about 180 faithless votes for president or vice president, Justice Kagan wrote, and Congress has accepted all of them. But she discounted those examples.
“The history going the opposite way is one of anomalies only,” she wrote, noting that there have been more than 23,000 electoral votes cast for president or vice president. “And more than a third of the faithless votes come from 1872, when the Democratic Party’s nominee (Horace Greeley) died just after Election Day. Putting those aside, faithless votes represent just one-half of one percent of the total.”
Justice Kagan said the possibility of a candidate’s death after Election Day raised important questions. “We do not dismiss how much turmoil such an event could cause,” she wrote, adding that “because the situation is not before us, nothing in this opinion should be taken to permit the states to bind electors to a deceased candidate.”