Presidential Electors and the Article V Convention: An Update

A few years ago I wrote a post explaining why the failure of the “Hamilton electors” in the 2016 presidential election demonstrated that it would be equally impossible for an Article V convention to “run away,” i.e., to propose amendments beyond the scope of the convention applied for by the state legislatures. Among other things, I argued that the constitutional case for allowing state legislatures to control their delegates to an Article V convention was stronger than that for exercising such control over their presidential electors. Accordingly, the deterrent and coercive effect of “delegate limitation laws” (DLAs) enacted by various states to control delegates to a potential Article V convention should be as least as great as that of faithless elector laws upon which they were in part modeled.

The Supreme Court’s recent decision upholding the constitutionality of faithless elector laws shows that it will be difficult to challenge DLAs and may encourage additional states to enact such laws. In Chiafolo v. Washington, 591 U.S. __ (2020), the Court unanimously held that states may not only require presidential electors to pledge to support a particular candidate but they may penalize electors who violate this pledge. Writing for seven justices, Justice Kagan acknowledged that the framers may have expected that the electors would exercise their own judgment and discretion in voting for president, but the “barebones” constitutional text regarding the electoral college failed to constitutionalize that requirement. Chiafolo, slip op. at 12-13. In contrast, the Constitution expressly gives state legislatures power over the appointment of presidential electors, and “the power to appoint an elector (in any manner) includes the power to condition his appointment– that is, to say what the elector must do for the appointment to take effect.” Id. at 9. The constitutional text and the longstanding practice of treating electors as mere instruments of the voters’ will persuaded the Court to uphold faithless elector laws.

Justice Thomas, writing for himself and Justice Gorsuch, concurred on different grounds. While he found “highly questionable” the majority’s conclusion that the Constitution affirmatively grants states the power to limit the discretion of presidential electors, he concluded that faithless elector laws were valid under the Tenth Amendment’s reservation of powers to the states and the people.

The Chiafolo ruling provides strong support for the constitutionality of DLAs. The Constitution is even more “barebones” about an Article V convention than about the electoral college. It does not expressly address how an Article V convention is constituted, who selects the delegates, or how they vote. (These omissions did not escape James Madison’s attention. See Michael Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765, 768 n.27 (2011)). Nonetheless, assuming that convention delegates are to be appointed by or in a manner directed by the state legislatures (as virtually everyone agrees would be the case), Chiafolo strongly suggests that these legislatures would have the power to condition the appointment by limiting the discretion of delegates and to impose legal consequences for violations of such condition.

Furthermore, in contrast to presidential electors, this conclusion comports with the purpose of the Article V convention and the original understanding thereof. Both the drafting history of Article V and the subsequent debates over ratification demonstrate that the convention was simply a device to allow the states, and specifically the state legislatures, to propose amendments without congressional interference. See Stern, 78 Tenn. L. Rev. at 767-71; see also Constitutional Convention– Limitation of Power to Propose Amendments to the Constitution, 3 Op. O.L.C. 390, 401 (1979) (“The whole point of the application process, under Madison’s approach, was that it provided the legislatures of the States with a means of obtaining proposals responsive to their own views concerning the need for constitutional change.”). There is no indication that anyone expected or intended that convention delegates exercise discretion independent of their state legislatures, particularly with regard to the scope of amendments to be considered. Allowing such discretion, moreover, would undermine the purpose  of the convention method of amendment by allowing delegates to consider topics that their legislatures did not wish to address.

Because there has never been an Article V convention, the historical record is less robust than with respect to operation of the electoral college. Such that exists, however, supports the proposition that state legislatures may limit the discretion of their convention delegates. For one thing, this was the founding era practice. See Robert G. Natelson, Founding-Era Conventions and the Meaning of the Constitution’s “Convention for Proposing Amendments,” 65 Fla. L. Rev. 615, 687 (2013) (“Universal pre-constitutional practice tells us that states may select, commission, instruct, and pay their delegates as they wish, and may alter their instructions and recall them.”). It is also consistent with the practice of Article V ratifying conventions on the sole occasion they have been employed (the ratification of the 21st amendment). In that case the delegates (like presidential electors) were generally selected based upon their pledges to vote for or against ratification, and in some cases they were legally bound to fulfill those pledges. See Davis, Ethan P., “Liquor Laws and Constitutional Conventions: A Legal History of the Twenty-first Amendment” 27-28 (2008). Student Scholarship Paper 65. Finally, the passage of DLAs in a number of states itself constitutes some evidence of a general understanding of state legislative authority over convention delegates.

Justice Thomas’s concurrence in Chiafolo provides an alternative basis for upholding DLAs. Given that the entire purpose of the Article V convention device is to guarantee state legislatures a method of initiating and formulating constitutional amendments without congressional interference, it is difficult to imagine a stronger case for applying the reserved powers language of the Tenth Amendment than to empower the state legislatures to control their own delegates to a convention for proposing amendments.

Finally, Chiafolo also indirectly sheds some light on the broader question whether an Article V convention may be limited by the language of the application of the state legislatures.  The Court rejected the argument that the Constitution’s use of terms such as “elector,” “vote and “ballot” mean that presidential electors should exercise independent choice in deciding for whom to vote, noting “that although voting and discretion are usually combined, voting is still voting when discretion departs.” Chiafolo, slip op. at 12. The Court also pointed out that there is no obviously “better description” of what these words describe even if discretion is absent. Id. 

Surely, the same is true of a “convention for proposing amendments,” which describes a meeting for the purpose of proposing amendments, regardless of the amount of discretion invested in its participants. Certainly it would not cease to be such a convention if it was limited in the subject matter or even the precise wording of the amendment(s) it considered. Indeed, the term “convention for proposing amendments” seems to me an equally apt description of a convention with limited discretion as one with unlimited discretion, and there is no better description that could convey the fact that the convention might be of either type.

In short, the Chiafolo decision bolsters the case for the constitutionality of DLAs and at least marginally advances the case for a limited Article V convention as well. It should be noted, however, that my original argument for the virtual impossibility of a so-called “runaway convention” did not depend on either of these propositions being conclusively demonstrated, and I make no such claim with regard to Chiafolo.

 

 

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