Some framers of the Constitution seemed to contemplate that electors would use independent judgment, the Supreme Court has said. “Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the chief executive,” Chief Justice Melville Fuller wrote in an 1892 Supreme Court decision. Over time, he added, “the original expectation may be said to have been frustrated.”
Alexander Hamilton described his expectation in the Federalist Papers. “Men chosen by the people for the special purpose” of selecting the president, he wrote, “will be most likely to possess the information and discernment requisite to such complicated investigations.”
Justice Kagan said remarks like that one did not establish the meaning of the Constitution.
“Even assuming other framers shared that outlook, it would not be enough,” she wrote. “Whether by choice or accident, the framers did not reduce their thoughts about electors’ discretion to the printed page.”
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.