By Samuel Fieldman, Wolf-PAC National Counsel
The Supreme Court is still capable of making a unanimous decision to enforce basic tenets of Constitutional Law, despite being viewed as ideologically divided. Its July 6 ruling on Chiafalo v. Washington was particularly significant. The high court affirmed that electors to the electoral college, like delegates to a convention held under the Constitution, must follow the instructions from their states.
The Chiafalo ruling declares that when a “State instructs its electors that they have no ground for reversing the vote of millions of its citizens, [t]hat direction accords with the Constitution — as well as with the trust of a Nation that here, We the People rule.”
Wolf-PAC’s plan uses this same reasoning to restore free and fair elections to the United States through a limited Article V Convention.
How electors operate
Americans don’t actually vote for the President, at least not directly. We the People entrust our votes to electors whose names we never see. They are often bound only by a pledge and their loyalty to the party that nominated them.
But what if the corrupt influence of money in politics infects the Electoral College and buys a presidency?
Many justices wrestled with this and other problems during the oral arguments in Chiafalo and the related case Colorado Department of State v. Baca. The Court grappled with this problem, deciding that the states could not only fine these “faithless electors,” but also invalidate their votes, and replace them with alternates who would follow instructions.
Professor Lessig of Harvard Law School, who advised on the creation of Wolf-PAC’s plan, was on the other side of the Chiafalo decision. He argued before the Court that unlike “delegates,” the word “electors” inherently requires free choice. The Court, however, did not see an important distinction and looked more to the historical practice and states’ rights to find a history that mirrors the three types of constitutional conventions.
Types of constitutional conventions
The electoral college is not the only such system in the Constitution. There are also three types of constitutional conventions outlined.
- Article VII provides for State Conventions to ratify the Constitution, which we used in 1788.
- Article V allows for state conventions to ratify amendments, a process also used just once, to repeal prohibition in 1933.
- That same Article V also outlines how a National Convention can propose amendments when Congress won’t.
The ratification convention of 1788
For the ratification Convention of 1788 in New Hampshire, many towns sent delegates with instructions to vote against the Constitution. Once there, many realized their error, but they could not violate their instructions. They returned home, seeking new instructions from their constituents.
The town delegate from Boscawen, N.H. threatened to violate any instruction to vote no. Boscawen held a vote to decide if they should allow him to vote his conscience or replace him. They ultimately chose to allow him to vote for the Constitution.
In a close vote, relying on those delegates who received new instructions, New Hampshire became the ninth state to ratify, putting our Constitution into effect.
The 1933 ratification amendment
Article V ratification conventions were used once, in 1933, recently enough that the event was photographed. The last one, in Utah, was broadcast nationwide on live radio.
Though many worried about this process that had been untested for a century and a half, states had no problems sorting it out. Each passed a law to provide for the convention, and each delegate followed their instructions.
Arizona passed a particularly innovative law. Faithless delegates would see their votes invalidated and would be replaced with an alternate, the same law upheld for electors in Chiafalo.
A national convention to propose amendments
The national convention process has been supported by Founding Fathers from Alexander Hamilton to James Madison, Supreme Court Justices from John Jay to Joseph Story to Antonin Scalia, institutional reports from the American Bar Association, the Department of Justice, and the Congressional Research Service, and constitutional scholars from Ronald Rotunda to Lawrence Lessig.
Many scholars have noted additional protections over the Article V proposing convention, ranging from ratification by 38 states to Congressional powers over many procedures. Similarly, Justice Alito argued in Chifalo that an elector could be prosecuted for perjury if he violates an oath, and Justice Breyer suggested the Senate could refuse to count faithless votes.
However, this case is about enforcement of instructions. The Court unanimously agreed that states can issue binding instructions on their electors. The same history and reasoning also support Wolf-PAC’s strategy, seeking to use the Article V Convention process to end the corrupting influence of money in politics.
Unlike the representatives of the people in Congress, agents of the people, like electors and delegates, are insulated from the influence of money and directly subject to enforceable instructions by We the People.
- The ABA, DOJ, and CRS reports and the treatise by Professor Rotunda are all available here: https://wolf-pac.com/about/resources/
- Professor Lessig’s testimony in support of last session’s version of the We the People Act: https://www.youtube.com/watch?v=Lgi-IlN6rqc
- Chiafalo decision: https://www.supremecourt.gov/opinions/19pdf/19-465_i425.pdf
- The descriptions of the opinions and concerns of the Justices not found in the opinion come from the oral arguments for Chiafalo (where Professor Lessig argued on behalf of the petitioners) and the related Baca case, which were decided together: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/19-465_l537.pdf https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/19-518_5h25.pdf
- The story of the New Hampshire Convention can be found in the Documentary History of the Ratification of the Constitution, vol. 28, which is not yet available online. When it is digitized, it will be posted here: http://digicoll.library.wisc.edu/cgi-bin/History/History-idx?type=browse&scope=History.Constitution
- The story of the 1933 Arizona Convention and the other State Amendment Ratifying Conventions can be found here: https://babel.hathitrust.org/cgi/pt?id=mdp.39015069875576&view=image&seq=7
- Sources on the views of Madison, Hamilton, Jay and Scalia, which do not appear in the links above, can be found here:
- Justice Story’s treatise, in which he cites the first ever law school textbook on the U.S. Constitution, by founding father St. George Tucker, can be found here: https://books.google.com/books?id=1CATAAAAYAAJ&pg=PA690#v=onepage&q&f=false