12
CHIAFALO v. WASHINGTON
Opinion of the Court
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 downballot 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 to
“men most capable of analyzing the qualities” needed for
the office, who would make their choices “under circumstances favorable to deliberation.” The Federalist No. 68,
p. 410 (C. Rossiter ed. 1961). So too, John Jay predicted
that the Electoral College would “be composed of the most
enlightened and respectable citizens,” whose choices would
reflect “discretion and discernment.” Id., No. 64, at 389.
But even assuming other Framers shared that outlook, it
would not be enough. Whether by choice or accident, the