Bound Electors

106 Virginia Law Review Online 1, 2020

27 Pages Posted: 15 Apr 2020 Last revised: 22 Jun 2020

Date Written: March 22, 2020

Abstract

In a decision hailed as “a masterpiece of historical analysis and originalist reasoning,” the Tenth Circuit recently held that the Constitution prevents a state from binding its presidential Electors to vote for the winner of the state’s popular vote. The decision creates a judicial split over this important issue of constitutional law, which the Supreme Court will resolve before the 2020 presidential election.

Far from being a masterpiece, however, the Tenth Circuit opinion is a selective reading of incomplete linguistic, historical and judicial materials. It utilizes the disputed interpretive technique of attributing thick meanings to constitutional text, including prescriptively thick meanings — ones that implicitly generate substantive rules of law missing from the Constitution’s express text. It ignores centuries of controversy over interpreting the law governing presidential elections. It reaches an overly broad conclusion — that “the states’ delegated role is complete upon the appointment of electors” — that is inconsistent with constitutional history and practice. It ultimately relies on background political principles that were contested at the adoption of the Constitution and remain contested today.

This Essay details constitutional history and practice consistent with broader governmental powers over Electors, perhaps including the power to bind them to the result of a popular election. This includes expectations of Founders and Ratifiers, eighteenth century linguistic usage that includes bound and dependent electors, early state actions to regulate Electors and ensure that they performed their function including eligibility requirements and grants of immunity, and congressional arrogation of unenumerated powers over Electors and over the express authority of state legislatures to direct the manner of appointing them. The Essay identifies issues with attributing thick meanings to constitutional terms. It suggests that the Supreme Court should reject the Tenth Circuit’s reasoning and develop a coherent normative theory of the roles of the people, the states and the federal government in the electoral process in order to resolve the dispute. Finally, it suggests a number of fundamental questions that the Court might consider in developing that theory.

Keywords: Constitutional Law, Presidential Elections, Electors, Originalism, Legal Theory, Legal Interpretation, Legal History, Baca, Chiafalo

Suggested Citation

Vlahoplus, John, Bound Electors (March 22, 2020). 106 Virginia Law Review Online 1, 2020, Available at SSRN: https://ssrn.com/abstract=3558880

John Vlahoplus (Contact Author)

Independent ( email )

No Address Available

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