Why Faithless Elector Laws Betray the Constitution

A few years ago at a dinner party, a well-meaning friend told me that the Supreme Court had finally fixed the Electoral College. Electors should do what the people want, he said. I smiled, took a sip of my drink, and told him the Founders would have hated that ruling. He looked at me like I had grown a second head. But I was right, and the misunderstanding runs deep. Most Americans have no idea what the Electoral College was actually designed to do. They have been told it is an archaic relic, a quirk of the eighteenth century that should be replaced with a direct popular vote. They have been told that binding electors to the popular vote is a reform that brings accountability. They have been told wrong. What we are doing when we bind electors is quietly dismantling one of the most carefully crafted constitutional safeguards in American history.

The Original Design

The Founders did not stumble into the Electoral College. They debated the method of presidential selection for weeks at the Constitutional Convention. They considered direct popular election. They considered selection by Congress. They considered appointment by state legislatures. They chose none of those options. Instead, they invented something entirely new: a body of independent, distinguished citizens chosen specifically to select the president. Go read Federalist No. 68. Alexander Hamilton is remarkably explicit. The Electoral College should consist of men most capable of analyzing the qualities adapted to the station, men with information and discernment requisite to so complicated an investigation. The whole purpose, Hamilton wrote, was to ensure that the office of President would never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.

Notice what Hamilton does not say. He does not say electors should simply register the popular vote in their state. He does not say they should be party loyalists who rubber-stamp a predetermined choice. He says they should analyze. They should discern. They should exercise independent judgment. The Founders had good reason for this design. They had watched demagogues throughout history ride popular passion to power. They had read their Thucydides, their Plutarch, their Machiavelli. They knew that direct democracy, rule by the immediate will of the majority, had a nasty habit of producing tyranny. James Madison wrote in Federalist No. 10 that democracies have ever been spectacles of turbulence and contention and that they have been as short in their lives as they have been violent in their deaths.

The Electoral College was a firewall against that turbulence. It was meant to give the people a voice through the election of electors, while also placing a check on the people's passions. The elector could resist a wave of populist frenzy. He could reject a candidate who was manifestly unfit. He could, in the extreme case, use his judgment to protect the republic. That was the design. We have spent the last two centuries undoing it.

What the Supreme Court Actually Did

Let us be clear on the facts. In Chiafalo v. Washington, decided unanimously in July 2020, the Supreme Court held that states may require presidential electors to pledge to support the winner of the state's popular vote, and that states may enforce that pledge by removing or fining electors who defect. Justice Kagan wrote for the majority, relying on Article II of the Constitution, which gives state legislatures the power to appoint electors in such Manner as the Legislature thereof may direct. If a state can appoint electors, the reasoning goes, it can also set conditions on that appointment. And it can enforce those conditions.

On its face, this seems reasonable. The state has a legitimate interest in ensuring that its electoral votes go to the candidate who won the statewide vote. The popular will should be respected. What could possibly be wrong with that? Here is what is wrong: the reasoning treats the elector as a mere agent of the state, not as a federal officer exercising a constitutional function. The Constitution creates the elector. The Constitution gives the elector a vote in a federal election. The state picks the person, yes, but once picked, that person performs a duty that is national in scope. The state should not be able to control that vote by threat of removal any more than it could control a senator's vote by threat of recall.

The Framers understood this. They specifically rejected proposals to make electors subject to state instruction. In the debates at the Constitutional Convention, the idea that electors might be bound by state legislatures was considered and dismissed. The elector was to be a federal officer for a single purpose, and federal officers exercise independent judgment. Justice Thomas, in a concurring opinion, hinted at this problem. He noted that the Constitution does not explicitly authorize states to bind electors, and that the text might well be read to forbid it. But he joined the majority anyway, citing long historical practice. History, however, does not make a bad constitutional argument good.

For most of American history, electors were expected to exercise judgment. Faithless electors were rare, but they existed, and they were generally accepted as part of the system. It was only in the twentieth century, with the rise of binding pledges and party-controlled primaries, that the independent elector became a theoretical anomaly rather than a constitutional possibility. The Supreme Court has now constitutionalized that anomaly. They have written into law the very thing the Founders never intended: a system in which the elector is a rubber stamp for the majority.

The Road We Are On

This is not an isolated ruling. It is part of a larger pattern: the systematic dismantling of every constitutional mechanism that insulates the presidency from direct popular control. Consider the National Popular Vote Interstate Compact, an agreement among states to award all their electoral votes to the winner of the national popular vote, regardless of how their own state votes. The compact would effectively abolish the Electoral College without a constitutional amendment. It has already passed in sixteen states and the District of Columbia, representing 196 electoral votes. Just seventy-four more and it takes effect.

Consider the rise of binding presidential primaries. Before the 1970s, most delegates to national conventions were party leaders who exercised independent judgment. Now they are bound by primary results, often with harsh penalties for deviation. The convention has become a coronation, not a deliberation. Consider the electoral count reform passed in 2022, which tightened the rules around Congress's counting of electoral votes. The law was presented as a safeguard against another January 6, but it also further centralized control over the certification process, reducing the ability of either body to challenge irregular electoral submissions.

Each of these reforms makes the same mistake. They treat the Electoral College as a democratic mechanism rather than a constitutional check. They assume that the purpose of the system is to translate votes into outcomes as directly as possible. But that is not what the Founders designed. They designed a system of layered, deliberate, filtered choice, one that protected against faction, against demagoguery, against the tyranny of the majority. We are dismantling that system piece by piece, and we are doing it in the name of democracy.

The Real Danger

The faithless elector is vanishingly rare. In the entire history of the republic, fewer than 180 electors have deviated from their pledge. Only a handful ever affected an outcome. The probability of a faithless elector swinging a presidential election is negligible. That is exactly why the Chiafalo ruling matters so little as a practical matter and so much as a constitutional one. The justices who voted to uphold state power over electors were solving a problem that barely exists. They were ruling on a hypothetical threat: the elector who goes rogue and subverts the popular will. In doing so, they created a far more dangerous precedent: the complete subordination of the individual elector's judgment to the state's control.

What happens when a state legislature uses this power not to enforce the popular vote, but to manipulate it? What happens when a state passes a law requiring electors to vote for the candidate who wins the party's primary, regardless of how the general election goes? What happens when a state conditions an elector's appointment on a pledge to support a particular faction? These are not idle hypotheticals. Under the logic of Chiafalo, a state could impose any condition it wished on its electors. It could require them to vote for a candidate who meets certain policy criteria. It could require them to vote for the candidate who wins the national popular vote, as the Interstate Compact attempts to do. It could require them to vote for whoever the state legislature picks, bypassing the voters entirely. The decision did not bind electors to the people. It bound them to the state. And the state, at the end of the day, is run by party politicians with their own interests.

What the Founders Actually Feared

Go back to Federalist No. 68 one more time. Hamilton wrote that the Electoral College was designed to prevent tumult and disorder, the kind of mob-driven politics that had destroyed republics throughout history. The electors would be most likely to possess the information and discernment to resist the desire in foreign powers to gain an improper ascendant in our councils. Notice the two threats Hamilton identified: domestic factionalism and foreign influence. Both are still with us. Both are arguably more dangerous today than they were in 1788.

The faithless elector laws do nothing to address either threat. They simply hand more power to the very forces the Founders were trying to constrain: the party machinery, the centralized state, the faction that can mobilize the largest number of bodies on election day. If you are worried about corruption, about electors being bribed or coerced, the Constitution already provides remedies. Congress can reject electoral votes it finds irregular. States can prosecute electors for bribery. The impeachment power hangs over any elector who betrays the public trust. What the Constitution does not provide is a mechanism for the state to pre-commit an elector's vote by threat of removal. Because once you do that, you have destroyed the independence that made the elector a check in the first place.

The One Percent Problem

Here is a thought experiment. Imagine an elector in a close state. The popular vote is razor thin, within a few hundred votes. Recounts are ongoing. Lawsuits are flying. And the elector has credible evidence, let us say sworn affidavits from election officials, that the vote count in several precincts is unreliable. Maybe fraudulent. Under the Chiafalo regime, that elector has two options: certify the controversial result or be removed and face criminal penalties. The independent judgment the Founders valued is gone. The elector is forced to rubber-stamp a result he has reason to doubt. This is not a fantasy. It is a scenario we came close to living through in 2020. And the faithless elector laws, celebrated as democratic safeguards, would have made it impossible for any elector to act on those concerns.

We are building a system in which procedural compliance is valued above constitutional judgment. We are training electors to be good soldiers rather than good citizens. And we are calling it reform.

The Republican Alternative

Here is what a proper respect for the Constitution would look like. States would continue to choose electors by popular vote, as most do. Those electors would be prominent, independent citizens, judges, veterans, civic leaders, academics, chosen for their judgment and integrity. They would consider the outcome of the election in their state. They would be free to vote for the winner. But they would also be free to exercise independent judgment if circumstances warranted. There would be no binding pledges. No threat of removal. No criminal penalties for voting your conscience. And if an elector cast a vote that defied the popular will, Congress would judge that vote when it counted the electoral ballots. Was it corrupt? Reject it. Was it principled? Debate it on the merits. The Constitution provides the forum.

That system, the Founders' system, trusts human judgment over procedural compulsion. It trusts dispersed, deliberative decision-making over centralized control. It trusts the character of the citizen over the power of the state. We have abandoned that system. We have replaced it with the very thing the Founders feared most: a system in which power flows upward, not downward, and in which the individual is reduced to a function of the collective.

What the Faithless Elector Fight Was Really About

The legal fight over faithless electors was never really about the tiny number of electors who might defect. It was about the fundamental character of the Electoral College. If states can bind electors, if they can turn them into rubber stamps, then the College is effectively dead. It becomes a ceremonial certification of the popular vote with no independent deliberative function. That is exactly what the abolitionists want. They have been trying to kill the Electoral College for decades. They cannot get a constitutional amendment. So they are doing it through the courts and through state legislation. The Supreme Court handed them a victory. Not a complete one, the Interstate Compact still requires a constitutional challenge, but a significant one. The Court has now declared that the elector belongs to the state, not to the federal system. The elector's independence is gone.

We have lost something important. Not a practical safeguard, the faithless elector was always a rarity. But a constitutional principle. The principle that the presidency should be chosen by independent judges of character, not by a mechanical counting of heads. Hamilton would be disappointed. Madison would be appalled. And the next time someone tells you that electors should just do what the people want, you can tell them what the Founders actually intended. The Electoral College was not a mistake. It was a masterpiece. And we are systematically unmaking it.