Paul S. Swedlund is assistant attorney general of the state of South Dakota. He is lead counsel on an amicus brief for 45 states and the District of Columbia in support of Washington and Colorado in Chiafalo v. Washington and Colorado Department of State v. Baca. The views expressed herein are solely those of the author. The opinions expressed herein should not be imputed in whole or in part to any other state or state official unless expressly endorsed by an authorized representative of the state.

In 2000, Al Gore lost the electoral vote to George Bush 266 to 271. Conventional wisdom holds that Florida cost Gore the election despite Gore’s winning the nationwide popular vote 50,999,897 to Bush’s 50,456,002.

Fast forward to 2016, when Hillary Clinton lost the electoral vote to Donald Trump 227 to 304. Conventional wisdom holds that the “blue wall” states of Wisconsin, Michigan and Pennsylvania cost Clinton the election despite her winning the nationwide popular vote 65,853,514 to Trump’s 62,984,828.

Both elections are held up as examples of Electoral College dysfunction. In reality, in both elections the Electoral College functioned precisely as designed.

The Framers of the Constitution saw that if being elected president depended simply on obtaining the greatest number of votes, candidates would concentrate their attention on large-state population centers to the detriment of smaller states and national unity. To assure that the president would represent not just the populated pockets of the country, the Framers prioritized the geographic distribution of votes over sheer numbers.

The Framers achieved that goal by structuring the Electoral College to function not as a chorus, but as a collection of soloists each waiting its turn to be heard. To win the office of president in a system requiring both numerical and geographic support, candidates must campaign in more and less populous states, allowing the voices of more citizens to be heard and fostering unity behind the office of the president.

States realized early that maximizing their influence depended on reliably delivering the greatest number of electoral votes to the (hopefully) winning candidate. As stated in Senate Report 22 from the first session of the 19th Congress in 1826:

In the first election held under the Constitution, the people looked beyond [electors], fixed upon their own candidates for President and Vice President and took pledges from the electoral candidates to obey their will. In every subsequent election, the same thing has been done.

By binding electors to the statewide popular vote winner, states have been able to incentivize candidates to campaign in their states, listen to their voters and look out for the state’s interests by holding out the potential reward of all of that state’s electoral votes. In this way, binding statutes have been instrumental in achieving the Electoral College’s aim of ensuring some geographic distribution of support for the occupant of the office of the president.

But did the Framers intend electors to be bound? The short answer is, “Sure, if that’s what a state wants to do.”

The notes of the constitutional convention reflect that an influential faction of delegates led by James Wilson favored direct election of the president. Another faction generally associated with Alexander Hamilton feared “mob rule” and wanted a college of “informed” and “discerning” independent electors from each state to name the president.

But even some supporters of direct election considered it impractical. How could candidates achieve national stature in a time before the existence of national political parties or mass communication? What prevented the balkanization of the vote by states rallying around local or regional favorite sons? How could the country directly elect a president with sufficient popular support to govern a nation as dispersed and diverse as America?

James Wilson of Pennsylvania bowed to the perception of the impracticality of direct election under then-existing conditions, but he correctly predicted that those conditions would change in time. Wilson believed that candidates of national stature would “multiply” as the country “more and more coalesce[d],” allowing voters to “know and judge them.”

So, when Wilson drafted the language that created the Electoral College, he left it up to the states in Article II, Section 1 of the Constitution to “appoint [electors] in such Manner as the Legislature … may direct.” Because legislatures are creatures of their constituents, Wilson’s language effectively allowed the voters of each state to decide how to appoint electors and allot the state’s electoral votes. Under the adopted language, states could opt for independent electors if they wished or some other system of their choosing.

The perception of insurmountable impediments to direct election very quickly evaporated. Candidates of national stature – George Washington, John Adams, Thomas Jefferson, James Madison – already existed in abundance, political parties capable of promoting them formed swiftly, and “a circulation of newspapers through the entire body of the people” allowed voters themselves to become informed about the issues and discerning in the exercise of their suffrage. The circumstances necessitating independent electors never materialized.

Thus, for more than 200 years, electors have served as agents of the state and its people, responsible for solemnizing and recording the “vote of the state” for president.

But Electoral College balloting cannot properly reflect the “vote of the state” and its people if a state’s electors can cast their ballots according to their own whims. Aside from nullifying the votes of approximately 700,000 voters per rogue elector, such wayward balloting frustrates the Framers’ goal of forcing presidential candidates to obtain both numerical and geographic support.

The 2000 and 2016 elections are a lesson to presidential candidates to court not just numbers but regions. Candidates who take their home state, or the past party affiliations of a certain category of states, for granted may find that, come their turn to sing, these states may not deliver a command performance.

In the historically close elections of 1876 and 2000, the outcomes depended on the candidate’s ability to carry his home state. Rutherford B. Hayes carried his home state of Ohio and won the presidency in 1876 by a single electoral vote; Gore, who had won statewide election to the U.S. Senate in Tennessee in 1984 and 1990, failed to carry his home state and lost the presidency by five electoral votes.

Tennessee’s 11 electoral votes in 2000 would have delivered a 277-vote electoral college majority to Gore. Wisconsin, Michigan and Pennsylvania could have delivered a 273-vote electoral college majority to Clinton. Where some may see injustice in the defeat of the national popular will, the framers would see the Electoral College justly penalizing candidates for failing to court geographic support and taking states for granted.

Small, medium and large states alike have an interest in maximizing their influence by binding their electors. The all-or-nothing stakes in binding electors also incentivize candidates to court smaller interest groups and minority populations who might make the difference between winning or losing a particular state. Binding electors has contributed to a stable two-party system. And binding electors promotes the aims of federalism by guaranteeing smaller states a certain measure of influence relative to large states.

The nation’s experience with binding electors to national party candidates has, ironically, proven to both optimize Wilson’s preference for direct election of the president and vice president and serve as Hamilton’s firewall against mob rule, provincialism and extreme faction. By design, Electoral College balloting is meant to reflect the vote of each individual state, not the nation as a whole or any one individual elector.

For states that have sought to maximize their numerical and geographic influence by binding electors to the statewide popular vote winner, Wilson made certain that the Constitution did not stand in their way.

Posted in Colorado Department of State v. Baca, Chiafalo v. Washington, Featured, Symposium before oral argument in Chiafalo v. Washington and Colorado Department of State v. Baca

Recommended Citation: Paul Swedlund, Symposium: To bind or not to bind: The state perspective on state authority over Electoral College balloting, SCOTUSblog (Apr. 24, 2020, 11:30 AM), https://www.scotusblog.com/2020/04/symposium-to-bind-or-not-to-bind-the-state-perspective-on-state-authority-over-electoral-college-balloting/