Cite as: 591 U. S. ____ (2020)
11
Opinion of the Court
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. Article II, §1 first
names the members of the Electoral College: “electors.” The
Twelfth Amendment then says that electors shall “vote”
and that they shall do so by “ballot.” The “plain meaning”
of those terms, the Electors say, requires electors to have
“freedom of choice.” Brief for Petitioners 29, 31. If the
States could control their votes, “the electors would not be
‘Electors,’ and their ‘vote by Ballot’ would not be a ‘vote.’ ”
Id., at 31.
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-