Cite as: 591 U. S. ____ (2020)
3
THOMAS, J., concurring in judgment
1
The Court’s conclusion that the text of Article II, §1, expressly grants States the power to impose substantive conditions or qualifications on electors is highly questionable.
Its interpretation appears to strain the plain meaning of
the text, ignore historical evidence, and give the term “Manner” different meanings in parallel provisions of Article I
and Article II.
First, the Court’s attempt to root its analysis in Article II,
§1, seems to stretch the plain meaning of the Constitution’s
text. Article II, §1, provides that States shall appoint electors “in such Manner as the Legislature thereof may direct.”
At the time of the founding, the term “manner” referred to
a “[f]orm” or “method.” 1 S. Johnson, A Dictionary of the
English Language (6th ed. 1785); see also 1 J. Ash, The New
and Complete Dictionary of the English Language (2d ed.
1795). These definitions suggest that Article II requires
state legislatures merely to set the approach for selecting
Presidential electors, not to impose substantive limitations
on whom may become an elector. And determining the
“Manner” of appointment certainly does not include the
power to impose requirements as to how the electors vote
after they are appointed, which is what the Washington law
addresses. See infra, at 8–9.
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
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