Cite as: 591 U. S. ____ (2020)
17
Opinion of the Court
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. Article II and the Twelfth Amendment
give States broad power over electors, and give electors
themselves no rights. Early in our history, States decided
to tie electors to the presidential choices of others, whether
legislatures or citizens. Except that legislatures no longer
play a role, that practice has continued for more than 200
years. Among the devices States have long used to achieve
their object are pledge laws, designed to impress on electors
their role as agents of others. A State follows in the same
tradition if, like Washington, it chooses to sanction an elector for breaching his promise. Then too, the State instructs
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8 The Electors contend that elector discretion is needed to deal with the
possibility that a future presidential candidate will die between Election
Day and the Electoral College vote. See Reply Brief 20–22. We do not
dismiss how much turmoil such an event could cause. In recognition of
that fact, some States have drafted their pledge laws to give electors voting discretion when their candidate has died. See, e.g., Cal. Elec. Code
Ann. §6906; Ind. Code §3–10–4–1.7. And we suspect that in such a case,
States without a specific provision would also release electors from their
pledge. Still, we note that because the situation is not before us, nothing
in this opinion should be taken to permit the States to bind electors to a
deceased candidate.