Several states have laws that purport to restrict or punish faithless electors for their electoral votes. See Wikipedia's Faithless elector: Legal position. Michigan and Minnesota even claim the authority to replace the votes of faithless electors after the fact:

If an elector fails to cast a ballot for the presidential or vice presidential candidate of the party under whose name the elector was chosen, the elector's vote or abstention is invalidated and an alternate presidential elector, chosen by lot from among the alternates, shall cast a ballot in the name of the elector for the presidential and vice presidential candidate of the party under whose name the elector was chosen.

If the status of elector is viewed literally, such laws constitute interference with the elector's free franchise. This obviously seems legally suspect.

While faithless-elector laws have never been enforced, and thus have not been tested in court, are they legally valid?

(This is separate of the issue of whether states or parties can require electors to pledge to vote for their party's candidate—which they can.)


3 Answers 3


As you indicate, we will ultimately need to wait for the Supreme Court to weigh in on such a question, but some analysis of our own can lead to a reasonable understanding of the argument that might be made.

First, the only the thing that the Constitution actually says about the selection and voting of the state's electors is the following in Article II, Section 1, Clause 2:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The key point of this statement is that the electors shall be appointed in a manner the state's legislature deems fit, not by some national or Constitutional standard. As a result, many of the types of laws you highlight are going to be given a fair bit of leniency from the Supreme Court. In fact, almost all election law in the United States is state law and that is why we see elections being carried out so differently from state to state with the state's Secretary of State presiding over and certifying elections.

  • 2
    As an aside - even simply having public elections to choose the Electors is technically at the discretion of the states. There'd be a huge uproar if they were to change it, but it would not be unconstitutional.
    – Bobson
    Jan 25, 2015 at 4:21
  • As David Grinberg noted above, the SCOTUS ruled that States may not impose stricter limits on Congress than the Constitution defines; it is likely that SCOTUS would likewise see some form of restraints similarly
    – eques
    Nov 22, 2016 at 15:06

In hindsight, the answer is yes, it's constitutional to restrict electors' votes at least by means of state-law punishments, which may include their replacement, according to SCOTUS Chiafalo v. Washington and Baca (2020):

Chiafalo v. Washington, 591 U.S. ___ (2020), was a United States Supreme Court case on the issue of "faithless electors" in the Electoral College stemming from the 2016 United States presidential election. The Court ruled unanimously that states have the ability to enforce an elector's pledge in presidential elections. Chiafalo deals with electors who received US$1,000 fines for not voting for the nominees of their party in the state of Washington. The case was originally consolidated with Colorado Department of State v. Baca, 591 U.S. ___ (2020), a similar case based on a challenge to a Colorado law providing for the removal and replacement of an elector who does not vote for the presidential candidate who received the most votes in the state, with the electors claiming they have discretion to vote as they choose under the Twelfth Amendment to the United States Constitution. [...]

The [Colorado] electors appealed to the Tenth Circuit, with oral arguments held in January 2019. [...] The court ruled in favor of the electors in a 2-1 vote in August 2019, agreeing that Baca's removal as an elector violated the Twelfth Amendment. The majority opinion, written by Circuit Judge Carolyn Baldwin McHugh and joined by Circuit Judge Jerome Holmes, stated that "The text of the Constitution makes clear that states do not have the constitutional authority to interfere with presidential electors who exercise their constitutional right to vote for the President and Vice President candidates of their choice." [...]

Instead of seeking an en banc review at the Tenth Circuit, Colorado filed a petition for writ of certiorari to the Supreme Court on October 16, 2019. Colorado's petition identified the circuit split between the Tenth Circuit's decision and that of the Washington Supreme Court in Chiafalo, seeking the Supreme Court's involvement to resolve the split.

The Supreme Court issued its rulings in both Chiafalo and Baca on July 6, 2020. Chiafalo was a unanimous ruling of the court, affirming the Washington court's decision that states may enforce the pledge of an elector in the presidential election; Baca was decided per curiam (with Sotomayor recused) reversing the Court of Appeal's judgement "for the reasons stated in Chiafalo..." Justice Elena Kagan wrote the majority opinion which all but Justice Clarence Thomas joined. Kagan wrote "Today, we consider whether a State may also penalize an elector for breaking his pledge and voting for someone other than the presidential candidate who won his State's popular vote. We hold that a State may do so...The Constitution's text and the Nation's history both support allowing a State to enforce an elector's pledge to support his party's nominee — and the state voters' choice — for President." Thomas wrote a concurrence that was partially joined by Justice Neil Gorsuch, adding that "nothing in the Constitution prevents States from requiring Presidential electors to vote for the candidate chosen by the people." In Baca, Thomas concurred in the judgment without an opinion.

According to some commentators cited by Wikipedia, SCOTUS surprised with its broad sweep allowing faithless electors not only to be fined (Chiafalo) but also outright replaced (reversing the 10th Circuit) in Baca.


Absolutely constitutional: the constitution leaves the determination of Electors at the discretion of the state legislature. Inherent in such discretion is the ability to condition selection up voting for a particular Candidate and the provision of penalties for failure to comply with such agreed to conditions.

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    You're going to have to back that up with something. The constitution leaves the manner of election of electors to the state, but the key is they are electors (people who meet to cast ballots). If you can tell them who they must vote for (which we'd agree most likely would be ruled out for direct elections) are they really electors?
    – eques
    Nov 22, 2016 at 15:04

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