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Opinion

'Chiafalo' Completes the Coup

The exact opposite of what the Framers originally intended has now been made the Law of the Land. John Jay wrote in Federalist 64 that the virtue of the Electoral College is that it can dampen “the activity of party zeal.” Hamilton, in Federalist 68, envisioned Electors as sophisticated people, who could be the free thinking representatives of the common folks in the President/VP election process.

Leading Framers, such as Washington and Madison, feared and abhorred “factions,” or parties. They did not want parties electing presidents. The Electoral College was part of the Separation of Powers, and was supposed to be a place conducive to deliberation. The Framers were men of the Enlightenment.

The 12th Amendment, ratified in 1804, states that “The Electors shall meet in their respective states and vote by ballot for President and [on a separate ballot] Vice-President …” (This repeats the language in Art 2, sec 1.)

One problem here is interpreting the meaning of “and vote.” To me, the Framers envisioned deliberation. But the two party system has captured the process for electing the President/VP, and, speaking as the creatures of the two party system nominating process, the Supreme Court has served the interests of the two party system, and virtually Amended the Constitution to incorporate the political parties.

Chiafalo v. Washington cements what was begun in Ray v Blair.

In Ray v Blair, the Court said that having electors pledge to vote according to the popular vote was OK. The opinion is worth reading for the dissent by Jackson and Douglas.

In a 5-2 decision (with two abstentions), the majority of Supreme Court Justices voted to uphold the constitutionality of such “pledging.” Even though the Court acknowledged that this pledging practice is not what the Framers had originally intended, they held that it was a time-honored custom, and therefore should be given the High Court’s imprimatur.

For the dissenters, such pledging contradicted the original intentions that Electors be independent-minded, and that their votes be an expression of their wills following their own deliberative process.

Jackson wrote that under the control of the parties, Electors “officially became voluntary party lackeys and intellectual nonentities to whose memory we might justly paraphrase a tuneful satire:

"They always voted at their Party's call
And never thought
of thinking for themselves
at all.”
Ray v. Blair (1952), 343 US 215

Learn more at Original Intentions of Framers for US Presidential Elections.

About the Author

William J. Kelleher, Ph.D.

Dr. Kelleher, political scientist and author, has contributed to IVN in the past, concerning election issues.

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