CHIAFALO ET AL. v. WASHINGTON
No. 19-465
SUPREME COURT OF THE UNITED STATES
July 6, 2020
591 U. S. ____ (2020)
CERTIORARI TO THE SUPREME COURT OF WASHINGTON
(Slip Opinion)
OCTOBER TERM, 2019
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CHIAFALO ET AL. v. WASHINGTON
CERTIORARI TO THE SUPREME COURT OF WASHINGTON
No. 19-465. Argued May 13, 2020—Decided July 6, 2020
Three Washington electors, Peter Chiafalo, Levi Guerra, and Esther John (the Electors), violated their pledges to support Hillary Clinton in the 2016 presidential election. In response, the State fined the Electors $1,000 apiece for breaking their pledges to support the same candidate its voters had. The Electors challenged their fines in state court, arguing that the Constitution gives members of the Electoral College the right to vote however they please. The Washington Superior Court rejected that claim, and the State Supreme Court affirmed, relying on Ray v. Blair, 343 U. S. 214. In Ray, this Court upheld a pledge requirement—though one without a penalty to back it up. Ray held that pledges were consistent with the Constitution‘s text and our Nation‘s history, id., at 225-230; but it reserved the question whether a State can enforce that requirement through legal sanctions.
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.
(a)
Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does.
(b) “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. The Electors make an appeal to that kind of practice in asserting their right to independence, but “our whole experience as a Nation” points in the opposite direction. NLRB v. Noel Canning, 573 U. S. 513, 557. From the first elections under the Constitution, States sent electors to the College to vote for pre-selected candidates, rather than to use their own judgment. The electors rapidly settled into that non-discretionary role. See Ray, 343 U. S., at 228-229. Ratified at the start of the 19th century, the
193 Wash. 2d 380, 441 P. 3d 807, affirmed.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined as to Part II.
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 19-465
PETER B. CHIAFALO, LEVI JENNET GUERRA, AND ESTHER VIRGINIA JOHN, PETITIONERS v. WASHINGTON
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF WASHINGTON
[July 6, 2020]
JUSTICE KAGAN delivered the opinion of the Court.
Every four years, millions of Americans cast a ballot for a presidential candidate. Their votes, though, actually go toward selecting members of the Electoral College, whom each State appoints based on the popular returns. Those few “electors” then choose the President.
The States have devised mechanisms to ensure that the electors they appoint vote for the presidential candidate their citizens have preferred. With two partial exceptions, every State appoints a slate of electors selected by the political party whose candidate has won the State‘s popular vote. Most States also compel electors to pledge in advance to support the nominee of that party. This Court upheld
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.
I
Our Constitution‘s method of picking Presidents emerged from an eleventh-hour compromise. The issue, one delegate to the Convention remarked, was “the most difficult of all [that] we have had to decide.” 2 Records of the Federal Convention of 1787, p. 501 (M. Farrand rev. 1966) (Farrand). Despite long debate and many votes, the delegates could not reach an agreement. See generally N. Peirce & L. Longley, The People‘s President 19–22 (rev. 1981). In the dying days of summer, they referred the matter to the so-called Committee of Eleven to devise a solution. The Committee returned with a proposal for the Electoral College. Just two days later, the delegates accepted the recommendation with but a few tweaks. James Madison later wrote to a friend that the “difficulty of finding an unexceptionable [selection] process” was “deeply felt by the Convention.” Letter to G. Hay (Aug. 23, 1823), in 3 Farrand 458. Because “the final arrangement of it took place in the latter stage of the Session,” Madison continued, “it was not exempt from a degree of the hurrying influence produced by fatigue and impatience in all such Bodies: tho’ the degree was much less than usually prevails in them.” Ibid. Whether less or not, the delegates soon finished their work and departed for home.
The provision they approved about presidential electors is fairly slim.
“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 next clause (but don‘t get attached: it will soon be superseded) set out the procedures the electors were to follow in casting their votes. In brief, each member of the College would cast votes for two candidates in the presidential field. The candidate with the greatest number of votes, assuming he had a majority, would become President. The runner-up would become Vice President. If no one had a majority, the House of Representatives would take over and decide the winner.
That plan failed to anticipate the rise of political parties, and soon proved unworkable. The Nation‘s first contested presidential election occurred in 1796, after George Washington‘s retirement. John Adams came in first among the candidates, and Thomas Jefferson second. That meant the leaders of the era‘s two warring political parties—the Federalists and the Republicans—became President and Vice President respectively. (One might think of this as fodder for a new season of Veep.) Four years later, a different problem arose. Jefferson and Aaron Burr ran that year as a Republican Party ticket, with the former meant to be President and the latter meant to be Vice. For that plan to succeed, Jefferson had to come in first and Burr just behind him. Instead, Jefferson came in first and Burr... did too. Every elector who voted for Jefferson also voted for
The result was the
“The Electors shall meet in their respective states and vote by ballot for President and Vice-President ...; 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 [Congress, where] the votes shall then be counted.”
The Amendment thus brought the Electoral College‘s voting procedures into line with the Nation‘s new party system.
Within a few decades, the party system also became the means of translating popular preferences within each State into Electoral College ballots. In the Nation‘s earliest elections, state legislatures mostly picked the electors, with the majority party sending a delegation of its choice to the Electoral College. By 1832, though, all States but one had introduced popular presidential elections. See Peirce & Longley, The People‘s President, at 45. At first, citizens voted for a slate of electors put forward by a political party, expecting that the winning slate would vote for its party‘s presidential (and vice presidential) nominee in the Electoral College. By the early 20th century, citizens in most States voted for the presidential candidate himself; ballots increasingly did not even list the electors. See Albright, The Presidential Short Ballot, 34 Am. Pol. Sci. Rev. 955, 955-957 (1940). After the popular vote was counted, States appointed the electors chosen by the party whose presidential nominee had won statewide, again expecting that they would vote for that candidate in the Electoral College.1
In the 20th century, many States enacted statutes meant to guarantee that outcome—that is, to prohibit so-called faithless voting. Rather than just assume that party-picked electors would vote for their party‘s winning nominee, those States insist that they do so. As of now, 32 States and the District of Columbia have such statutes on their books. They are typically called pledge laws because most demand that electors take a formal oath or pledge to cast their ballot for their party‘s presidential (and vice presidential) candidate. Others merely impose that duty by law. Either way, the statutes work to ensure that the electors vote for the candidate
Most relevant here, States began about 60 years ago to back up their pledge laws with some kind of sanction. By now, 15 States have such a system.2 Almost all of them immediately remove a faithless elector from his position, substituting an alternate whose vote the State reports instead. A few States impose a monetary fine on any elector who flouts his pledge.
Washington is one of the 15 States with a sanctions-
backed pledge law designed to keep the State‘s electors in line with its voting citizens. As all States now do, Washington requires political parties fielding presidential candidates to nominate a slate of electors. See
This case involves three Washington electors who violated their pledges in the 2016 presidential election. That year, Washington‘s voters chose Hillary Clinton over Donald Trump for President. The State thus appointed as its electors the nominees of the Washington State Democratic Party. Among those Democratic electors were petitioners Peter Chiafalo, Levi Guerra, and Esther John (the Electors). All three pledged to support Hillary Clinton in the Electoral College. But as that vote approached, they decided to cast their ballots for someone else. The three hoped they could encourage other electors—particularly those from States Donald Trump had carried—to follow their example. The idea was to deprive him of a majority of electoral votes and throw the election into the House of Representatives. So the three Electors voted for Colin Powell for President. But their effort failed. Only seven electors
across the Nation cast faithless votes—the most in a century, but well short of the goal. Candidate Trump became President Trump. And, more to the point here, the State fined the Electors $1,000 apiece for breaking their pledges to support the same candidate its voters had.
The Electors challenged their fines in state court, arguing that the Constitution gives members of the Electoral College the right to vote however they please. The Washington Superior Court rejected the Electors’ claim in an oral decision, and the State‘s Supreme Court affirmed that judgment. See In re Guerra, 193 Wash. 2d 380, 441 P. 3d 807 (2019). The court relied heavily on our decision in Ray v. Blair upholding a pledge requirement—though one without a penalty to back it up. See 193 Wash. 2d, at 393–399, 441 P. 3d, at 813-816. In the state court‘s view, Washington‘s penalty provision made no difference.
A few months later, the United States Court of Appeals for the Tenth Circuit reached the opposite conclusion in a case involving another faithless elector. See Baca v. Colorado Dept. of State, 935 F. 3d 887 (2019). The Circuit Court held that Colorado could not remove the elector, as its pledge law directs, because the Constitution “provide[s] presidential electors the right to cast a vote” for President “with discretion.” Id., at 955.
We granted certiorari to resolve the split. 589 U. S. ____ (2020). We now affirm the Washington Supreme Court‘s judgment that a State may enforce its pledge law against an elector.
II
As the state court recognized, this Court has considered elector pledge requirements before. Some seventy years ago Edmund Blair tried to become a presidential elector in Alabama. Like all States, Alabama lodged the authority to pick electors in the political parties fielding presidential candidates. And the Alabama Democratic Party required a pledge phrased much like Washington‘s today. No one could get on the party‘s slate of electors without agreeing to vote in the Electoral College for the Democratic presidential candidate. Blair challenged the pledge mandate. He argued that the “intention of the Founders was that [presidential] electors should exercise their judgment in voting.” Ray, 343 U. S., at 225. The pledge requirement, he claimed, “interfere[d] with the performance of this constitutional duty to select [a president] according to the best judgment of the elector.” Ibid.
Our decision in Ray rejected that challenge. “Neither the language of
Ray, however, reserved a question not implicated in the case: Could a State enforce those pledges through legal
sanctions? See id., at 230. Or would doing so violate an elector‘s “constitutional freedom” to “vote as he may choose” in the Electoral College? Ibid. Today, we take up that question. We uphold Washington‘s penalty-backed pledge law for reasons much like those given in Ray. The Constitution‘s text and the Nation‘s history both support allowing a State to
A
ballot for his party‘s presidential nominee, thus tracking the State‘s popular vote. See Ray, 343 U. S., at 227 (A pledge requirement “is an exercise of the state‘s right to appoint electors in such manner” as it chooses). Or—so long as nothing else in the Constitution poses an obstacle—a State can add, as Washington did, an associated condition of appointment: It can demand that the elector actually live up to his pledge, on pain of penalty. Which is to say that the State‘s appointment power, barring some outside constraint, enables the enforcement of a pledge like Washington‘s.6
And nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as Washington does. The Constitution is barebones about electors.
The Framers could have done it differently; other constitutional drafters of their time did. In the founding era, two
States—Maryland and Kentucky—used electoral bodies selected by voters to choose state senators (and in Kentucky‘s case, the Governor too). The Constitutions of both States, Maryland‘s drafted just before and Kentucky‘s just after the U. S. Constitution, incorporated language that would have made this case look quite different. Both state Constitutions required all electors to take an oath “to elect without favour, affection, partiality, or prejudice, such persons for Senators, as they, in their judgment and conscience, believe best qualified for the office.” Md. Declaration of Rights, Art. XVIII (1776); see Ky. Const., Art. I, §14 (1792) (using identical language except adding “[and] for Governor“). The emphasis on independent “judgment and conscience” called for the exercise of elector discretion. But although the Framers knew of Maryland‘s Constitution, no language of that kind made it into the document they drafted. See 1 Farrand 218, 289 (showing that Madison and Hamilton referred to the Maryland system at the Convention).
The Electors argue that three simple words stand in for more explicit language about discretion.
But those words need not always connote independent choice. Suppose a person always votes in the way his spouse, or pastor, or union tells him to. We might question his judgment, but we would have no problem saying that he “votes” or fills in a “ballot.” In those cases, the choice is in someone else‘s hands, but the words still apply because they can signify a mechanical act. Or similarly, suppose in a sys-
tem allowing proxy voting (a common practice in the founding era), the proxy acts on clear instructions from the principal, with no freedom of choice. Still, we might well say that he cast a “ballot” or “voted,” though the preference registered was not his own. For that matter, some elections give the voter no real choice because there is only one name on a ballot (consider an old Soviet election, or even a down-ballot race in this country). Yet if the person in the voting booth goes through the motions, we consider him to have voted. The point of all these examples is to show that although voting and discretion are usually combined, voting is still voting when discretion departs. Maybe most telling, switch from hypotheticals to the members of the Electoral College. For centuries now, as we‘ll later show, almost all have considered themselves bound to vote for their party‘s (and the state voters‘) preference. See infra, at 13–17. Yet there is no better description for what they do in the Electoral College than “vote” by “ballot.” And all these years later, everyone still calls them “electors“—and not wrongly, because even though they vote without discretion, they do indeed elect a President.
The Electors and their amici object that the Framers using those words expected the Electors’ votes to reflect their own judgments. See Brief for Petitioners 18–19; Brief for Independence Institute as Amicus Curiae 11–15. Hamilton praised the Constitution for entrusting the Presidency
But even assuming other Framers shared that outlook, it would not be enough. Whether by choice or accident, the
Framers did not reduce their thoughts about electors’ discretion to the printed page. All that they put down about the electors was what we have said: that the States would appoint them, and that they would meet and cast ballots to send to the Capitol. Those sparse instructions took no position on how independent from—or how faithful to—party and popular preferences the electors’ votes should be. On that score, the Constitution left much to the future. And the future did not take long in coming. Almost immediately, presidential electors became trusty transmitters of other people‘s decisions.
B
“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 (1929). As James Madison wrote, “a regular course of practice” can “liquidate & settle the meaning of” disputed or indeterminate “terms & phrases.” Letter to S. Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908); see The Federalist No. 37, at 225. The Electors make an appeal to that kind of practice in asserting their right to independence. But “our whole experience as a Nation” points in the opposite direction. NLRB v. Noel Canning, 573 U. S. 513, 557 (2014) (internal quotation marks omitted). Electors have only rarely exercised discretion in casting their ballots for President. From the first, States sent them to the Electoral College—as today Washington does—to vote for pre-selected candidates, rather than to use their own judgment. And electors (or at any rate, almost all of them) rapidly settled into that non-discretionary role. See Ray, 343 U. S., at 228-229.
Begin at the beginning—with the Nation‘s first contested election in 1796. Would-be electors declared themselves for one or the other party‘s presidential candidate. (Recall that
in this election Adams led the Federalists against Jefferson‘s Republicans. See supra, at 3.) In some States, legislatures chose the electors; in others, ordinary voters did. But in either case, the elector‘s declaration of support for a candidate—essentially a pledge—was what mattered. Or said differently, the selectors of an elector knew just what they were getting—not someone who would deliberate in good Hamiltonian fashion, but someone who would vote for their party‘s candidate. “[T]he presidential electors,” one historian writes, “were understood to be instruments for expressing the will of those who selected them, not independent agents authorized to exercise their own judgment.” Whittington, Originalism, Constitutional Construction, and the Problem of Faithless Electors, 59 Ariz. L. Rev. 903, 911 (2017). And when the time came to vote in the Electoral College, all but one elector did what everyone expected, faithfully representing their selectors’ choice of presidential candidate.7
as President and Vice President, and the tie vote that threw the next election into the House. See supra, at 3. Both had occurred because the Constitution‘s original voting procedures gave electors two votes for President, rather than one apiece for President and Vice President. Without the capacity to vote a party ticket for the two offices, the electors had foundered, and could do so again. If the predominant party‘s electors used both their votes on their party‘s two candidates, they would create a tie (see 1800). If they intentionally cast fewer votes for the intended vice president, they risked the opposite party‘s presidential candidate sneaking into the second position (see 1796). By allowing the electors to vote separately for the two offices, the
Courts and commentators throughout the 19th century recognized the electors as merely acting on other people‘s preferences. Justice Story wrote that “the electors are now chosen wholly with reference to particular candidates,” having either “silently” or “publicly pledge[d]” how they will vote. 3 Commentaries on the Constitution of the United States §1457, p. 321 (1833). “[N]othing is left to the electors,” he continued, “but to register [their] votes, which are already pledged.” Id., at 321-322. Indeed, any “exercise of an independent judgment would be treated[ ] as a political usurpation, dishonourable to the individual, and a fraud upon his constituents.” Id., at 322. Similarly, William
Rawle explained how the Electoral College functioned: “[T]he electors do not assemble in their several states for a free exercise of their own judgments, but for the purpose of electing” the nominee of “the predominant political party which has chosen those electors.” A View of the Constitution of the United States of America 57 (2d ed. 1829). Looking back at the close of the century, this Court had no doubt that Story‘s and Rawle‘s descriptions were right. The electors, the Court noted, were chosen “simply to register the will of the appointing power in respect of a particular candidate.” McPherson, 146 U. S., at 36.
The history going the opposite way is one of anomalies only. The Electors stress that since the founding, electors have cast some 180 faithless votes for either President or Vice President. See Brief for Petitioners 7. But that is 180 out of over 23,000. See Brief for Republican National Committee as Amicus Curiae 19. And more than a third of the faithless votes come from 1872, when the Democratic Party‘s nominee (Horace Greeley) died just after Election
Day.8 Putting those aside, faithless votes represent just one-half of one percent of the total. Still, the Electors counter, Congress has counted all those votes. See Brief for Petitioners 46. But because faithless votes have never come close to affecting an outcome, only one has ever been challenged. True enough, that one was counted. But the Electors cannot rest a claim of historical tradition on one counted vote in over 200 years. And anyway, the State appointing that elector had no law requiring a pledge or otherwise barring his use of discretion. Congress‘s deference to a state decision to tolerate a faithless vote is no ground for rejecting a state decision to penalize one.
III
The Electors’ constitutional claim has neither text nor history on its side.
Affirmed.
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins as to Part II, concurring in the judgment.
The Court correctly determines that States have the power to require Presidential electors to vote for the candidate chosen by the people of the State. I disagree, however, with its attempt to base that power on
I
A
The Constitution does not address—expressly or by necessary implication—whether States have the power to require that Presidential electors vote for the candidates chosen by the people.
The only provision in the Constitution that arguably addresses a State‘s power over Presidential electors is Clause 2 of
B
In a somewhat cursory analysis, the Court concludes that the States’ duty to appoint electors “in such Manner as the Legislature thereof may direct,”
1
The Court‘s conclusion that the text of
First, the Court‘s attempt to root its analysis in
Historical evidence from the founding also suggests that the “Manner” of appointment refers to the method for selecting electors, rather than the substantive limitations placed on the position. At the Convention, the Framers debated whether Presidential electors should be selected by the state legislatures or by other electors chosen by the voters of each State. Oliver Ellsworth and Luther Martin, for example, thought the President should be chosen by electors selected by state legislatures. McPherson v. Blacker, 146 U. S. 1, 28 (1892). Alexander Hamilton, however, preferred a system in which the President would be chosen “by electors chosen by electors chosen by the people.” Ibid. The final language of
This understanding of “Manner” was seemingly shared by those at the ratifying conventions. For instance, at the North Carolina ratifying convention, John Steele stated that “[t]he power over the manner of elections [under Article I, §4] does not include that of saying who shall vote.” 4 Debates on the Constitution 71 (J. Elliot ed. 1863) (emphasis added). Rather “the power over the manner only enables [States] to determine how these electors shall elect.” Ibid. (emphasis added and deleted). In short, the historical context and contemporaneous use of the term “Manner” seem to indicate that the Framers and the ratifying public both understood the term in accordance with its plain meaning.
Finally, the Court‘s interpretation gives the same term—“Manner“—different meanings in two parallel provisions of the Constitution.
With respect, I demur. “When seeking to discern the meaning of a word in the Constitution, there is no better dictionary than the rest of the Constitution itself.” Arizona State Legislature v. Arizona Independent Redistricting Comm‘n, 576 U. S. 787, 829 (2015) (ROBERTS, C. J., dissenting); cf. Scialabba v. Cuellar de Osorio, 573 U. S. 41, 60 (2014) (KAGAN, J., for the Court) (“[W]ords repeated in different parts of the same statute generally have the same meaning” (quoting Law v. Siegel, 571 U. S. 415, 422 (2014))). While terms may not always have the exact same meaning throughout the Constitution, here we are interpreting the same word (“Manner“) in two provisions that the Court has already stated impose “paralle[l]” duties—setting the “Manner of holding Elections” and setting the “Manner” of “appoint[ing] a Number of Electors.” U. S. Term Limits, 514 U. S., at 804-805 (majority opinion). Nothing in the Constitution‘s text or history indicates that the Court should take the strongly disfavored step of concluding that the term “Manner” has two different meanings in these closely aligned provisions.
All the Court can point to in support of its position is a single sentence in Ray v. Blair, 343 U. S. 214 (1952), which suggested that a State‘s power to impose a requirement that electors pledge to vote for their party‘s nominee comes from Article II, §1, id., at 227. But this statement is simply made in passing in response to one of the parties’ arguments. It is curiously bereft of reasoning or analysis of Article II. We generally look to the text to govern our analysis rather than insouciantly follow stray, “incomplete” statements in our prior opinions, see Thryv, Inc. v. Click-To-Call Technologies, LP, 590 U. S. ___ (2020) (slip op., at 13). In my view, we should be guided by the text here.
2
Even accepting the Court‘s broad interpretation of Clause 2 of
To understand the Court‘s error, a brief summary of its theory is necessary. According to the Court,
Assuming the Court has correctly interpreted
But not all States attempt to bind electors’ votes through the appointment process. Some States simply impose a legal duty that has no connection to elector appointment. See ante, at 5. For example, New Mexico imposes a legal duty on its electors: “All presidential electors shall cast their ballots in the electoral college for the candidates of the political party which nominated them as presidential electors.”
The Court recognizes the distinction between these two types of laws, i.e., laws enforcing appointment conditions and laws that regulate electors outside of the appointment
Here, the challenged Washington law did not enforce any appointment condition. It provided that “[a]ny elector who votes for a person or persons not nominated by the party of which he or she is an elector is subject to a civil penalty of up to one thousand dollars.”
In short, the Constitution does not speak to States’ power to require Presidential electors to vote for the candidates chosen by the people. The Court‘s attempt to ground such a power in
II
When the Constitution is silent, authority resides with the States or the people. This allocation of power is both embodied in the structure of our Constitution and expressly required by the
A
“The ultimate source of the Constitution‘s authority is the consent of the people of each individual State.” U. S. Term Limits, 514 U. S., at 846 (THOMAS, J., dissenting). When the States ratified the Federal Constitution, the people of each State acquiesced in the transfer of limited power to the Federal Government. They ceded only those powers granted to the Federal Government by the Constitution. “The Federal Government and the States thus face different default rules: Where the Constitution is silent about the exercise of a particular power[,] the Federal Government lacks that power and the States enjoy it.” Id., at 848; see also United States v. Comstock, 560 U. S. 126, 159 (2010) (THOMAS, J., dissenting).
This allocation of power is apparent in the structure of our Constitution. The Federal Government “is acknowledged by all
This structural principle is explicitly enshrined in the
Thus, “[w]here the Constitution is silent about the exercise of a particular power[,] that is, where the Constitution does not speak either expressly or by necessary implication,” the power is “either delegated to the state government or retained by the people.” U. S. Term Limits, supra, at 847-848 (THOMAS, J., dissenting); cf. Martin v. Hunter‘s Lessee, 1 Wheat. 304, 326 (1816) (stating that the Federal Government‘s powers under the Constitution must be “expressly given, or given by necessary implication“).
B
This fundamental allocation of power applies in the context of the electoral college.
Of course, the powers reserved to the States concerning Presidential electors
As the Court recognizes, nothing in the Constitution prevents States from requiring Presidential electors to vote for the candidate chosen by the people. Petitioners ask us to infer a constitutional right to elector independence by interpreting the terms “appoint,” “Electors,” “vote,” and “by Ballot” to align with the Framers’ expectations of discretion in elector voting. But the Framers’ expectations aid our interpretive inquiry only to the extent that they provide evidence of the original public meaning of the Constitution. They cannot be used to change that meaning. As the Court explains, the plain meaning of the terms relied on by petitioners do not appear to “connote independent choice.” Ante, at 11. Thus, “the original expectation[s]” of the Framers as to elector discretion provide “no reason for holding that the power confided to the States by the Constitution has ceased to exist.” McPherson, 146 U. S., at 36; see also ante, at 12-13.
* * *
“The people of the States, from whom all governmental powers stem, have specified that all powers not prohibited to the States by the Federal Constitution are reserved ‘to the States respectively, or to the people.‘” U. S. Term Limits, supra, at 852 (THOMAS, J., dissenting). Because I would decide this case based on that fundamental principle, I concur only in the judgment.