Liquidating Elector Discretion

Abstract

The U.S. Supreme Court will soon decide whether states may remove and/or punish faithless electors. Petitioners arguing against elector discretion point to a 2014 case called National Labor Relations Board v. Noel Canning which blessed a form of constitutional interpretation that looks to settled practice (or “liquidation,” as Madison called it) to resolve constitutional ambiguity. Petitioners argue that electors following the majority will of voters in their state is settled practice. This short essay engages this assertion, looking at Electoral College norms and practice in the states to suggest that, while its exercise is rare, elector discretion is the understood and accepted default.

Keywords: Electoral College, Elector Discretion, Voting, Election, Presidential Election, Faithless Elector, Article II, Twelfth Amendment, Liquidation, Madison, Popular Vote