Avoiding the temptation to overread Chiafalo v. Washington
I’ve taken a day to chew over the Supreme Court’s decision in Chiafalo v. Washington, the “faithless electors” case. I’ve read a lot of commentary and talked to a lot of people who’ve wondered about broader implications of this case. My reaction is: it might be best not to overread this case.
This is, in one sense, an extraordinary case, but in another, and perhaps more significant, sense, a narrow case. The case is really about one set of facts: the state power to penalize or replace electors who cast a vote contrary to statewide popular vote winner.
I think some of the Court’s language could plausibly be used in other contexts. For instance, when it talks about the “State’s popular vote,” could that preclude a pledge for the national popular vote winner? Maybe—but, then again, maybe because that’s the way states do it now, and that’s what Washington and Colorado do, so that’s the language used. When the Court says that the Equal Protection Clause binds legislative decisionmaking, does that mean the legislature no longer has the power to select electors itself? Maybe—but, then again, the Court elsewhere favorably cites the deferential approach in McPherson v. Blacker. Could Congress be bound by the Court’s reasoning? Maybe—but, then again, it favorably cited “Congress’s deference to a state decision” elsewhere.
In short, my instinct in a decision with an eight-justice majority is to closely heed the narrow holding—states, I think, are free to run with statutes that bind presidential electors—and to loosely consider the Court’s reasoning for later application. It might be persuasive to a five-justice majority considering a later issue, but it’s just as easily distinguishable for some of the reasons I identified. The context matters, and the context here—again, while extraordinary—is narrow. So, in short, the reasoning is as persuasive to later courts as later courts deem it—no more, no less, and, really, hardly binding. The “mays” are just mays, not musts.
That’s my sense of how to read this case, anyway.