By: Shawn Meehan, Founder, Guard The Constitution
This morning in their “Chiafalo v. Washington” (Faithless Electors) case opinion [1], the United States Supreme Court grossly erred their interpretation and application of the Constitution related to presidential electors. Their approach not only gets the Constitution wrong as to the intent of electors, but their support for the flawed approach of the states, is unenforceable.
The court justified its position partly through the bankrupt doctrine of historical misuse of the Constitution, especially generational usurpation of the Constitution, as defining the intent of the Founders themselves. Justice Kagan delivered the opinion of the Court and trashed the Constitution when she wrote, ““Long settled and established practice” may have “great weight in a proper interpretation of constitutional provisions.” The Pocket Veto Case, 279 U. S. 655, 689.” Yes, she wrote, and the rest of the justices concurred that essentially, because we have been doing it wrong for so long, we now assert we are doing it correctly, the way The Founders intended. No, no, no!
We must understand that the Constitution tends to speak in generalities, letting Congress apply specifics as the current times require. [2] So, it is correct that where the Constitution is clear and specific in prescription or procedure, it is to be assumed such was done deliberately, and it is be followed specifically. [3]
We see that the Constitution, as amended by the Twelfth Amendment, provides that electors shall vote and assemble their votes for transmission to Congress in a sealed envelope. [4] There is no opening for state officials to inject themselves into such a specific process to identify if any electors failed to vote “properly.”
As unconstitutionally codified in Nevada law for example, Nevada Revised Statutes (NRS) 298 [5], the Secretary of State (SOS) passes out ballots to electors and then collects them with the SOS ensuring that electors marked their ballots for the candidate receiving the most popular votes. Such law directly invades the clear process of the Twelfth Amendment where electors are to mark ballots, “make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President” and then electors transmit these ballots in a sealed envelope to the President of the U.S. Senate. [4]
That the Twelfth Amendment clearly sets out this procedure with no participation by others, especially officials of the state, laws such as the “Uniform Faithful Presidential Electors Act” codified in NRS 298 are unconstitutional. There are no provisions for a Secretary of State to be able to know how a specific elector voted. As such, no elector could be determined to have voted “wrongly” so as to be replaced. Further, the Twelfth Amendment clearly requires the electors to makes lists of all persons voted for as President, and likewise Vice President. If it is constitutional for a state to require electors to vote the popular vote winner, one candidate, then why does the Twelfth Amendment clearly require all candidates voted for be listed? The state cannot limit electors to one choice.
The Twelfth Amendment also requires the electors to forward the ballots, and their lists, to the Senate in a sealed envelope. The Constitution specifically directing how to handle the mail task can only mean no state officials are part of that segment of the process either, so they may never know if an elector voted “wrongly” so as to be removed and/or punished.
The Supreme Court failed to even touch on this clearly set out electoral voting process of the Twelfth Amendment in their opinion, while yet referencing the existence of, and overall importance of the Twelfth Amendment to the process and this case.
The Supreme Court also offends the Constitution and Americans by giving great deference to the way things have been done historically, so as to codify generational usurpation of our Constitution. The Founders advised us in Article VI of the Constitution, the Supremacy Clause, that the Constitution is supreme, not usurpation of it, and certainly, the courts were not made supreme.
The usurpation I emphasize is the intellectually dishonest characterization of the Founder’s intent with regard to electors being free and independent agents in exercising their votes. The Founders debated that some current public officials should not be electors as well the body of persons electing the president should also be a temporary body so as to not be prone to corruption in the selection of the chief magistrate (President) such a powerful and important office.[6]
If the Founders sincerely feared corruption (they did), by definition such corruption of electors would only be possible in the manipulation of their votes. How though could their votes be manipulated if states were intended to be allowed to bind their hands in voting? Of course they were not. Electors were never intended to be rubber stamps.
A thorough reading of the original intent found in the record of the 1787 Constitutional Convention in Philadelphia, the Federalist Papers, and the records of the ratification debates in the states clearly show that electors are to be free agents.
The Founders knew The People were ruled by their emotions and that a wise informed group of men were needed to select the president based on a deliberative process protected from corruption.
That our modern popular culture might choke while trying to swallow this concept, in no way gives The Supreme Court license to publish that the Constitution means how it has been misapplied all these decades. Their duty is to interpret the Constitution as originally ratified, and apply that fixed meaning to our modern world.
Disclosure: I, Shawn Meehan was selected by the Nevada Republican Party as one of six Nevada Presidential Electors at their June 2020 Nevada Republican Convention.
End Notes:
[1]. Chiafalo v. Washington, Certiorari to the Supreme Court of WashingtonNo. 19–465. Argued May 13, 2020—Decided July 6, 2020
Full Opinion: https://www.supremecourt.gov/opinions/19pdf/19-465_i425.pdf
Held: A State may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President. Pp. 8–18. [2]. “As a rule, the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require….”
— DILLON v. GLOSS, 256 U.S. 368 (1921) [3]. “In areas where the Constitution is specific, for example, where it requires that the President be thirty-five years of age, the prerogative of constitutional review imparts little power to the interpreter.”
— Louisiana Law Review, Volume 40 | Number 1, Fall 1979, Judicial Review in the United States, Alvin B. Rubin
“Where the Constitution is specific,” he argues, “the Court should not permit Congress to adopt a contrary approach under the more general authority it possesses under the Necessary and Proper Clause.”
Id. at 1947–48. John F. Manning, Separation of Powers as Ordinary Interpretation, 124 HARV. L. REV. 1939, 1944–48 (2011). Professor Manning, DUKE LAW JOURNAL [Vol. 64:1513]
[4]. The Twelfth Amendment reads in part: “The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate….”
NRS 298.065 Meeting of presidential electors; nominees whose candidates receive highest number of votes become presidential electors; procedures for filling vacancies; pledge of presidential electors selected at meeting.
1. The Secretary of State shall preside at the meeting of presidential electors held pursuant to 3 U.S.C. § 7. Except as otherwise provided in this section and NRS 298.075, the nominees for presidential elector whose candidates for President and Vice President receive the highest number of votes in this State at the general election are the presidential electors.
NRS 298.075 Voting for President and Vice President; procedures when presidential elector acts contrary to pledge; recording of votes.
1. The Secretary of State shall provide to each presidential elector a ballot for the office of President and a ballot for the office of Vice President. The presidential elector shall mark the applicable ballot provided by the Secretary of State for the person who received the highest number of votes at the general election for the office of President and the person who received the highest number of votes at the general election for the office of Vice President. The presidential elector shall sign and legibly print his or her name on the ballots and present the ballots to the Secretary of State.
2. After all presidential electors have presented their ballots to the Secretary of State, the Secretary of State shall examine each ballot. If a presidential elector:
(a) Presents both ballots and the ballots are marked with votes for the person who received the highest number of votes at the general election for the office of President and the person who received the highest number of votes at the general election for the office of Vice President, respectively, the Secretary of State shall accept both ballots.
(b) Does not present both ballots, presents an unmarked ballot or presents a ballot marked with a vote that does not conform with the provisions of subsection 1:
(1) The Secretary of State shall refuse to accept either ballot of the presidential elector; and
(2) The Secretary of State shall deem the presidential elector’s position vacant. The vacancy must be filled pursuant to the provisions of NRS 298.065. The person appointed to fill the vacancy in the position of presidential elector, after signing the pledge described in NRS 298.065, shall mark both ballots and present both ballots to the Secretary of State pursuant to this section.
3. Only the votes accepted by the Secretary of State pursuant to this section may be recorded on the lists of votes made by the presidential electors pursuant to 3 U.S.C. § 9.
[6]. Selected excerpts from Federalist #68:It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.
No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty.