Abstract

In Chiafalo et al. v. Washington, the US. Supreme Court determined that states may constitutionally remove or punish faithless electors. In support of its holding, the Court cited 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 James Madison called it) to resolve constitutional ambiguity. The Court agreed with petitioners that electors following the majority will of voters in their state is settled practice. This Article engages this assertion, suggesting that the question is more nuanced than the Court allowed. It examines Electoral College norms and practice, finding support for the conclusion that, while its exercise is rare, elector discretion was--at least until Chiafalo--the understood and accepted norm.

Document Type

Article

Publication Information

15 Harvard Law & Policy Review 53-79 (2020)

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