Chiafalo v. Washington

Summary

A State may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President.

Text

PRELIMINARY PRINT 
Volume 591 U. S. Part 2 
Pages 578–609 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
July 6, 2020 
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of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
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578 OCTOBER TERM, 2019 
Syllabus 
CHIAFALO et al. v. WASHINGTON 
certiorari to the supreme court of washington 
No. 19–465. Argued May 13, 2020—Decided July 6, 2020 
When Americans cast ballots for presidential candidates, their votes actu-
ally go toward selecting members of the Electoral College, whom each 
State appoints based on the popular returns. The States have devised 
mechanisms to ensure that the electors they appoint vote for the presi-
dential candidate their citizens have preferred. With two partial excep-
tions, every State appoints a slate of electors selected by the political 
party whose candidate has won the State's popular vote. Most States 
also compel electors to pledge to support the nominee of that party. 
Relevant here, 15 States back up their pledge laws with some kind of 
sanction. Almost all of these States immediately remove a so-called 
“faithless elector” from his position, substituting an alternate whose 
vote the State reports instead. A few States impose a monetary fne 
on any elector who fouts his pledge. 
Three Washington electors, Peter Chiafalo, Levi Guerra, and Esther 
John (the Electors), violated their pledges to support Hillary Clinton in 
the 2016 presidential election. In response, the State fned the Electors 
$1,000 apiece for breaking their pledges to support the same candidate 
its voters had. The Electors challenged their fnes in state court, ar-
guing that the Constitution gives members of the Electoral College the 
right to vote however they please. The Washington Superior Court 
rejected that claim, and the State Supreme Court affrmed, relying on 
Ray v. Blair, 343 U. S. 214. In Ray, this Court upheld a pledge require-
ment—though one without a penalty to back it up. Ray held that 
pledges were consistent with the Constitution's text and our Nation's 
history, id., at 225–230; but it reserved the question whether a State can 
enforce that requirement through legal sanctions. 
Held: A State may enforce an elector's pledge to support his party's 
nominee—and the state voters' choice—for President. Pp. 587–597. 
(a) Article II, § 1 gives the States the authority to appoint electors 
“in such Manner as the Legislature thereof may direct.” This Court 
has described that clause as “conveying the broadest power of determi-
nation” over who becomes an elector. McPherson v. Blacker, 146 U. S. 
1, 27. And the power to appoint an elector (in any manner) includes 
power to condition his appointment, absent some other constitutional 
constraint. A State can require, for example, that an elector live in the 
State or qualify as a regular voter during the relevant time period. Or

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Cite as: 591 U. S. 578 (2020) 579 
Syllabus 
more substantively, a State can insist (as Ray allowed) that the elector 
pledge to cast his Electoral College ballot for his party's presidential 
nominee, thus tracking the State's popular vote. Or—so long as noth-
ing else in the Constitution poses an obstacle—a State can add an associ-
ated condition of appointment: It can demand that the elector actually 
live up to his pledge, on pain of penalty. Which is to say that the State's 
appointment power, barring some outside constraint, enables the en-
forcement of a pledge like Washington's. 
Nothing in the Constitution expressly prohibits States from taking 
away presidential electors' voting discretion as Washington does. Arti-
cle II includes only the instruction to each State to appoint electors, and 
the Twelfth Amendment only sets out the electors' voting procedures. 
And while two contemporaneous State Constitutions incorporated lan-
guage calling for the exercise of elector discretion, no language of that 
kind made it into the Federal Constitution. Contrary to the Electors' 
argument, Article II's use of the term “electors” and the Twelfth 
Amendment's requirement that the electors “vote,” and that they do so 
“by ballot,” do not establish that electors must have discretion. The 
Electors and their amici object that the Framers using those words 
expected the Electors' votes to refect their own judgments. But even 
assuming that outlook was widely shared, it would not be enough. 
Whether by choice or accident, the Framers did not reduce their 
thoughts about electors' discretion to the printed page. Pp. 588–592. 
(b) “Long settled and established practice” may have “great weight 
in a proper interpretation of constitutional provisions.” The Pocket 
Veto Case , 279 U. S. 655, 689. The Electors make an appeal to that 
kind of practice in asserting their right to independence, but “our whole 
experience as a Nation” points in the opposite direction. NLRB v. Noel 
Canning, 573 U. S. 513, 557. From the frst elections under the Consti-
tution, States sent electors to the College to vote for pre-selected candi-
dates, rather than to use their own judgment. The electors rapidly 
settled into that non-discretionary role. See Ray, 343 U. S., at 228–229. 
Ratifed at the start of the 19th century, the Twelfth Amendment both 
acknowledged and facilitated the Electoral College's emergence as a 
mechanism not for deliberation but for party-line voting. Courts and 
commentators throughout that century recognized the presidential elec-
tors as merely acting on other people's preferences. And state election 
laws evolved to reinforce that development, ensuring that a State's elec-
tors would vote the same way as its citizens. Washington's law is only 
another in the same vein. It refects a longstanding tradition in which 
electors are not free agents; they are to vote for the candidate whom 
the State's voters have chosen. Pp. 592–597.

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580 CHIAFALO v. WASHINGTON 
Syllabus 
193 Wash. 2d 380, 441 P. 3d 807, affrmed. 
Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., 
and Ginsburg, Breyer, Alito, Sotomayor, Gorsuch, and Kavanaugh, 
JJ., joined. Thomas, J., fled an opinion concurring in the judgment, in 
which Gorsuch, J., joined as to Part II, post, p. 597. 
L. Lawrence Lessig argued the cause for petitioners. 
With him on the briefs were Jason Harrow, Sumeer Singla, 
Daniel A. Brown, Hunter M. Abell, Jonah O. Harrison, J. 
Max Rosen, and Jason B. Wesoky. 
Noah G. Purcell, Solicitor General of Washington, argued 
the cause for respondent. With him on the brief were Rob-
ert W. Ferguson, Attorney General of Washington, Tera 
Heintz and Alan D. Copsey, Deputy Solicitors General, and 
Cristina Sepe , Assistant Attorney General.* 
*Briefs of amici curiae urging reversal were fled for the Independence 
Institute by David B. Kopel and Joseph G. S. Greenlee; for Jerry H. Gold-
feder by Mr. Goldfeder, pro se; and for Michael L. Rosin et al. by Peter K. 
Stris, Michael N. Donofrio , and Bridget C. Asay. 
Briefs of amici curiae urging affrmance were fled for the State of 
South Dakota et al. by Jason R. Ravnsborg, Attorney General of South 
Dakota, and Paul S. Swedlund, Assistant Attorney General, and by the 
Attorneys General for their respective jurisdictions as follows: Steve Mar-
shall of Alabama, Kevin G. Clarkson of Alaska, Mark Brnovich of Ari-
zona, Xavier Becerra of California, William Tong of Connecticut, Kathy 
Jennings of Delaware, Karl A. Racine of the District of Columbia, Ashley 
Moody of Florida, Christopher M. Carr of Georgia, Clare E. Connors of 
Hawaii, Lawrence Wasden of Idaho, Kwame Raoul of Illinois, Curtis T . 
Hill, Jr., of Indiana, Tom Miller of Iowa, Daniel Cameron of Kentucky, 
Jeff Landry of Louisiana, Aaron M. Frey of Maine, Brian E . Frosh of 
Maryland, Maura Healey of Massachusetts, Dana Nessel of Michigan, 
Keith Ellison of Minnesota, Lynn Fitch of Mississippi, Eric S. Schmitt of 
Missouri, Timothy C. Fox of Montana, Doug J. Peterson of Nebraska, 
Aaron D. Ford of Nevada, Gordon MacDonald of New Hampshire, Gurbir 
S. Grewal of New Jersey, Hector Balderas of New Mexico, Letitia James 
of New York, Josh Stein of North Carolina, Wayne Stenehjem of North 
Dakota, Dave Yost of Ohio, Mike Hunter of Oklahoma, Ellen Rosenblum 
of Oregon, Josh D. Shapiro of Pennsylvania, Peter F . Neronha of Rhode 
Island, Alan Wilson of South Carolina, Herbert H. Slatery III of Tennes-
see, Sean D. Reyes of Utah, Thomas J. Donovan of Vermont, Mark R. Her-

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Opinion of the Court 
Justice Kagan delivered the opinion of the Court. 
Every four years, millions of Americans cast a ballot for 
a presidential candidate. Their votes, though, actually go 
toward selecting members of the Electoral College, whom 
each State appoints based on the popular returns. Those 
few “electors” then choose the President. 
The States have devised mechanisms to ensure that the 
electors they appoint vote for the presidential candidate 
their citizens have preferred. With two partial exceptions, 
every State appoints a slate of electors selected by the politi-
cal party whose candidate has won the State's popular vote. 
Most States also compel electors to pledge in advance to sup-
port the nominee of that party. This Court upheld such a 
pledge requirement decades ago, rejecting the argument 
that the Constitution “demands absolute freedom for the 
elector to vote his own choice.” Ray v. Blair, 343 U. S. 214, 
228 (1952). 
Today, we consider whether a State may also penalize an 
elector for breaking his pledge and voting for someone other 
than the presidential candidate who won his State's popular 
vote. We hold that a State may do so. 
I 
Our Constitution's method of picking Presidents emerged 
from an eleventh-hour compromise. The issue, one delegate 
ring of Virginia, Patrick Morrisey of West Virginia, Josh L. Kaul of Wis-
consin, and Bridget Hill of Wyoming; for the Campaign Legal Center et al. 
by Tobias S. Loss-Eaton, Paul M. Smith, Adav Noti, and David Kolker; 
for Public Citizen by Scott L. Nelson and Allison M. Zieve; for the Repub-
lican National Committee by Michael E. Toner, Lee E. Goodman, and Ste-
phen J. Obermeier; for Robert W. Bennett by J. Samuel Tenenbaum, Jef-
frey T. Green, and Sarah O'Rourke Schrup; and for Michael T. Morley by 
Mr. Morley, pro se . 
Briefs of amici curiae were fled for Citizens for Self-Governance by 
Rita M. Dunaway; for the Making Every Vote Count Foundation by Jer-
rold J. Ganzfried, Reed E. Hundt, and Thea A. Cohen; for Edward B. 
Foley by Jessica Ring Amunson and Zachary C. Schauf ; for Vinz Koller 
by Andrew J. Dhuey; and for Derek T. Muller by Ian Speir.

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582 CHIAFALO v. WASHINGTON 
Opinion of the Court 
to the Convention remarked, was “the most diffcult of all 
[that] we have had to decide.” 2 Records of the Federal 
Convention of 1787, p. 501 (M. Farrand rev. 1966) (Farrand). 
Despite long debate and many votes, the delegates could not 
reach an agreement. See generally N. Peirce & L. Longley, 
The People's President 19–22 (rev. 1981). In the dying days 
of summer, they referred the matter to the so-called Com-
mittee of Eleven to devise a solution. The Committee re-
turned with a proposal for the Electoral College. Just two 
days later, the delegates accepted the recommendation with 
but a few tweaks. James Madison later wrote to a friend 
that the “diffculty of fnding an unexceptionable [selection] 
process” was “deeply felt by the Convention.” Letter to G. 
Hay (Aug. 23, 1823), in 3 Farrand 458. Because “the fnal 
arrangement of it took place in the latter stage of the Ses-
sion,” Madison continued, “it was not exempt from a degree 
of the hurrying infuence produced by fatigue and impatience 
in all such Bodies: tho' the degree was much less than usually 
prevails in them.” Ibid. Whether less or not, the dele-
gates soon fnished their work and departed for home. 
The provision they approved about presidential electors is 
fairly slim. Article II, § 1, cl. 2 says: 
“Each State shall appoint, in such Manner as the Legis-
lature thereof may direct, a Number of Electors, equal 
to the whole Number of Senators and Representatives 
to which the State may be entitled in the Congress: but 
no Senator or Representative, or Person holding an Of-
fce of Trust or Proft under the United States, shall be 
appointed an Elector.” 
The next clause (but don't get attached: it will soon be super-
seded) set out the procedures the electors were to follow in 
casting their votes. In brief, each member of the College 
would cast votes for two candidates in the presidential feld. 
The candidate with the greatest number of votes, assuming 
he had a majority, would become President. The runner-up

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Opinion of the Court 
would become Vice President. If no one had a majority, the 
House of Representatives would take over and decide the 
winner. 
That plan failed to anticipate the rise of political parties, 
and soon proved unworkable. The Nation's frst contested 
presidential election occurred in 1796, after George Washing-
ton's retirement. John Adams came in frst among the can-
didates, and Thomas Jefferson second. That meant the lead-
ers of the era's two warring political parties—the Federalists 
and the Republicans—became President and Vice President 
respectively. (One might think of this as fodder for a new 
season of Veep.) Four years later, a different problem arose. 
Jefferson and Aaron Burr ran that year as a Republican 
Party ticket, with the former meant to be President and the 
latter meant to be Vice. For that plan to succeed, Jefferson 
had to come in frst and Burr just behind him. Instead, Jef-
ferson came in frst and Burr . . . did too. Every elector who 
voted for Jefferson also voted for Burr, producing a tie. 
That threw the election into the House of Representatives, 
which took no fewer than 36 ballots to elect Jefferson. (Al-
exander Hamilton secured his place on the Broadway 
stage—but possibly in the cemetery too—by lobbying Feder-
alists in the House to tip the election to Jefferson, whom he 
loathed but viewed as less of an existential threat to the 
Republic.) By then, everyone had had enough of the Elec-
toral College's original voting rules. 
The result was the Twelfth Amendment, whose main part 
provided that electors would vote separately for President 
and Vice President. The Amendment, ratifed in 1804, says: 
“The Electors shall meet in their respective states and 
vote by ballot for President and Vice-President . . . ; they 
shall name in their ballots the person voted for as Presi-
dent, and in distinct ballots the person voted for as Vice-
President, and they shall make distinct lists of all per-
sons voted for as President, and of all persons voted for 
as Vice-President, and of the number of votes for each,

584 CHIAFALO v. WASHINGTON 
Opinion of the Court 
which lists they shall sign and certify, and transmit 
sealed to [Congress, where] the votes shall then be 
counted.” 
The Amendment thus brought the Electoral College's voting 
procedures into line with the Nation's new party system. 
Within a few decades, the party system also became the 
means of translating popular preferences within each State 
into Electoral College ballots. In the Nation's earliest elec-
tions, state legislatures mostly picked the electors, with the 
majority party sending a delegation of its choice to the Elec-
toral College. By 1832, though, all States but one had intro-
duced popular presidential elections. See Peirce & Longley, 
The People's President, at 45. At frst, citizens voted for a 
slate of electors put forward by a political party, expecting 
that the winning slate would vote for its party's presidential 
(and vice presidential) nominee in the Electoral College. By 
the early 20th century, citizens in most States voted for the 
presidential candidate himself; ballots increasingly did not 
even list the electors. See Albright, The Presidential Short 
Ballot, 34 Am. Pol. Sci. Rev. 955, 955–957 (1940). After the 
popular vote was counted, States appointed the electors cho-
sen by the party whose presidential nominee had won state-
wide, again expecting that they would vote for that candi-
date in the Electoral College.
1 
In the 20th century, many States enacted statutes meant 
to guarantee that outcome—that is, to prohibit so-called 
1 Maine and Nebraska (which, for simplicity's sake, we will ignore after 
this footnote) developed a more complicated system in which two electors 
go to the winner of the statewide vote and one goes to the winner of each 
congressional district. See Me. Rev. Stat. Ann., Tit. 21–A, § 802 (2006); 
Neb. Rev. Stat. § 32–710 (2016). So, for example, if the Republican candi-
date wins the popular vote in Nebraska as a whole but loses to the Demo-
cratic candidate in one of the State's three congressional districts, the 
Republican will get four electors and the Democrat will get one. Here 
too, though, the States use party slates to pick the electors, in order to 
refect the relevant popular preferences (whether in the State or in an 
individual district). 
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faithless voting. Rather than just assume that party-picked 
electors would vote for their party's winning nominee, those 
States insist that they do so. As of now, 32 States and the 
District of Columbia have such statutes on their books. 
They are typically called pledge laws because most demand 
that electors take a formal oath or pledge to cast their ballot 
for their party's presidential (and vice presidential) candi-
date. Others merely impose that duty by law. Either way, 
the statutes work to ensure that the electors vote for the 
candidate who got the most statewide votes in the presiden-
tial election. 
Most relevant here, States began about 60 years ago to 
back up their pledge laws with some kind of sanction. By 
now, 15 States have such a system.
2 Almost all of them im-
mediately remove a faithless elector from his position, sub-
stituting an alternate whose vote the State reports instead. 
A few States impose a monetary fne on any elector who 
fouts his pledge. 
Washington is one of the 15 States with a sanctions-backed 
pledge law designed to keep the State's electors in line with 
its voting citizens. As all States now do, Washington 
requires political parties felding presidential candidates 
to nominate a slate of electors. See Wash. Rev. Code 
§ 29A.56.320(1). On Election Day, the State gives voters 
a ballot listing only the candidates themselves. See 
29A.56.320(2). When the vote comes in, Washington 
moves toward appointing the electors chosen by the party 
whose candidate won the statewide count. See ibid. But 
2 Ariz. Rev. Stat. Ann. § 16–212 (2019 Cum. Supp.); Cal. Elec. Code Ann. 
§§ 6906, 18002 (West 2019); Colo. Rev. Stat. § 1–4–304 (2019); Ind. Code 
§ 3–10–4–9 (2019); Mich. Comp. Laws § 168.47 (2008); Minn. Stat. §§ 208.43, 
208.46 (2020 Cum. Supp.); Mont. Code Ann. §§ 13–25–304, 13–25–307 
(2019); Neb. Rev. Stat. §§ 32–713, 32–714; Nev. Rev. Stat. §§ 298.045, 
298.075 (2017); N. M. Stat. Ann. § 1–15–9 (Supp. 2011); N. C. Gen. Stat. 
Ann. § 163–212 (2019); Okla. Stat., Tit. 26, §§ 10–102, 10–109 (2019); S. C. 
Code Ann. § 7–19–80 (2018); Utah Code § 20A–13–304 (2020); Wash. Rev. 
Code §§ 29A.56.084, 29A.56.090 (2019). 
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586 CHIAFALO v. WASHINGTON 
Opinion of the Court 
before the appointment can go into effect, each elector must 
“execute [a] pledge” agreeing to “mark [her] ballots” for the 
presidential (and vice presidential) candidate of the party 
nominating her. § 29A.56.084. And the elector must com-
ply with that pledge, or else face a sanction. At the time 
relevant here, the punishment was a civil fne of up to $1,000. 
See § 29A.56.340 (2016).
3 
This case involves three Washington electors who violated 
their pledges in the 2016 presidential election. That year, 
Washington's voters chose Hillary Clinton over Donald 
Trump for President. The State thus appointed as its elec-
tors the nominees of the Washington State Democratic Party. 
Among those Democratic electors were petitioners Peter 
Chiafalo, Levi Guerra, and Esther John (the Electors). All 
three pledged to support Hillary Clinton in the Electoral 
College. But as that vote approached, they decided to cast 
their ballots for someone else. The three hoped they could 
encourage other electors—particularly those from States 
Donald Trump had carried—to follow their example. The 
idea was to deprive him of a majority of electoral votes and 
throw the election into the House of Representatives. So 
the three Electors voted for Colin Powell for President. 
But their effort failed. Only seven electors across the Na-
tion cast faithless votes—the most in a century, but well 
short of the goal. Candidate Trump became President 
Trump. And, more to the point here, the State fned the 
Electors $1,000 apiece for breaking their pledges to support 
the same candidate its voters had. 
The Electors challenged their fnes in state court, arguing 
that the Constitution gives members of the Electoral College 
the right to vote however they please. The Washington Su-
perior Court rejected the Electors' claim in an oral decision, 
and the State's Supreme Court affrmed that judgment. See 
3 Since the events in this case, Washington has repealed the fne. It 
now enforces pledges only by removing and replacing faithless electors. 
See Wash. Rev. Code § 29A.56.090(3) (2019). 
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In re Guerra, 193 Wash. 2d 380, 441 P. 3d 807 (2019). The 
court relied heavily on our decision in Ray v. Blair upholding 
a pledge requirement—though one without a penalty to back 
it up. See 193 Wash. 2d, at 393–399, 441 P. 3d, at 813–816. 
In the state court's view, Washington's penalty provision 
made no difference. Article II of the Constitution, the court 
noted, grants broad authority to the States to appoint elec-
tors, and so to impose conditions on their appointments. 
See id., at 393, 395, 441 P. 3d, at 813, 814. And nothing in 
the document “suggests that electors have discretion to cast 
their votes without limitation or restriction by the state leg-
islature.” Id., at 396, 441 P. 3d, at 814. 
A few months later, the United States Court of Appeals 
for the Tenth Circuit reached the opposite conclusion in a 
case involving another faithless elector. See Baca v. Colo-
rado Dept. of State , 935 F. 3d 887 (2019). The Circuit Court 
held that Colorado could not remove the elector, as its pledge 
law directs, because the Constitution “provide[s] presidential 
electors the right to cast a vote” for President “with discre-
tion.” Id., at 955. 
We granted certiorari to resolve the split. 589 U. S. ––– 
(2020). We now affrm the Washington Supreme Court's 
judgment that a State may enforce its pledge law against 
an elector. 
II 
As the state court recognized, this Court has considered 
elector pledge requirements before. Some seventy years 
ago Edmund Blair tried to become a presidential elector in 
Alabama. Like all States, Alabama lodged the authority to 
pick electors in the political parties felding presidential can-
didates. And the Alabama Democratic Party required a 
pledge phrased much like Washington's today. No one could 
get on the party's slate of electors without agreeing to vote 
in the Electoral College for the Democratic presidential can-
didate. Blair challenged the pledge mandate. He argued 
that the “intention of the Founders was that [presidential] 
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588 CHIAFALO v. WASHINGTON 
Opinion of the Court 
electors should exercise their judgment in voting.” Ray, 
343 U. S., at 225. The pledge requirement, he claimed, “in-
terfere[d] with the performance of this constitutional duty to 
select [a president] according to the best judgment of the 
elector.” Ibid. 
Our decision in Ray rejected that challenge. “Neither the 
language of Art. II, § 1, nor that of the Twelfth Amendment,” 
we explained, prohibits a State from appointing only electors 
committed to vote for a party's presidential candidate. Ibid. 
Nor did the Nation's history suggest such a bar. To the con-
trary, “[h]istory teaches that the electors were expected 
to support the party nominees” as far back as the earliest 
contested presidential elections. Id., at 228. “[L]ongstand-
ing practice” thus “weigh[ed] heavily” against Blair's claim. 
Id., at 228–230. And current voting procedures did too. 
The Court noted that by then many States did not even 
put electors' names on a presidential ballot. See id., at 
229. The whole system presupposed that the electors, be-
cause of either an “implied” or an “oral pledge,” would vote 
for the candidate who had won the State's popular election. 
Ibid. 
Ray, however, reserved a question not implicated in the 
case: Could a State enforce those pledges through legal sanc-
tions? See id., at 230. Or would doing so violate an elec-
tor's “constitutional freedom” to “vote as he may choose” in 
the Electoral College? Ibid. Today, we take up that ques-
tion. We uphold Washington's penalty-backed pledge law 
for reasons much like those given in Ray. The Constitu-
tion's text and the Nation's history both support allowing a 
State to enforce an elector's pledge to support his party's 
nominee—and the state voters' choice—for President. 
A 
Article II, § 1's appointments power gives the States far-
reaching authority over presidential electors, absent some 
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Opinion of the Court 
other constitutional constraint. 4 As noted earlier, each 
State may appoint electors “in such Manner as the Legisla-
ture thereof may direct.” Art. II, § 1, cl. 2; see supra, at 
582. This Court has described that clause as “conveying the 
broadest power of determination” over who becomes an elec-
tor. McPherson v. Blacker, 146 U. S. 1, 27 (1892).
5 And the 
power to appoint an elector (in any manner) includes power 
to condition his appointment—that is, to say what the elector 
must do for the appointment to take effect. A State can 
require, for example, that an elector live in the State or qual-
ify as a regular voter during the relevant time period. Or 
more substantively, a State can insist (as Ray allowed) that 
the elector pledge to cast his Electoral College ballot for his 
party's presidential nominee, thus tracking the State's popu-
lar vote. See Ray, 343 U. S., at 227 (A pledge requirement 
“is an exercise of the state's right to appoint electors in such 
manner” as it chooses). Or—so long as nothing else in the 
Constitution poses an obstacle—a State can add, as Washing-
ton did, an associated condition of appointment: It can de-
mand that the elector actually live up to his pledge, on pain 
of penalty. Which is to say that the State's appointment 
power, barring some outside constraint, enables the enforce-
ment of a pledge like Washington's.
6 
4 Checks on a State's power to appoint electors, or to impose conditions 
on an appointment, can theoretically come from anywhere in the Constitu-
tion. A State, for example, cannot select its electors in a way that vio-
lates the Equal Protection Clause. And if a State adopts a condition on 
its appointments that effectively imposes new requirements on presiden-
tial candidates, the condition may confict with the Presidential Qualifca-
tions Clause, see Art. II, § 1, cl. 5. 
5 See also U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 805 (1995) 
(describing Article II, § 1 as an “express delegation[ ] of power to the 
States”); but see post, at 597–598 (Thomas, J., concurring in judgment) 
(continuing to press the view, taken in the Thornton dissent, that Article 
II, § 1 grants the States no power at all). 
6 The concurring opinion would have us make fne distinctions among 
state laws punishing faithless voting—treating some as conditions of ap-
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590 CHIAFALO v. WASHINGTON 
Opinion of the Court 
And nothing in the Constitution expressly prohibits States 
from taking away presidential electors' voting discretion as 
Washington does. The Constitution is barebones about elec-
tors. Article II includes only the instruction to each State 
to appoint, in whatever way it likes, as many electors as it 
has Senators and Representatives (except that the State may 
not appoint members of the Federal Government). The 
Twelfth Amendment then tells electors to meet in their 
States, to vote for President and Vice President separately, 
and to transmit lists of all their votes to the President of 
the United States Senate for counting. Appointments and 
procedures and . . . that is all. See id., at 225. 
The Framers could have done it differently; other constitu-
tional drafters of their time did. In the founding era, two 
States—Maryland and Kentucky—used electoral bodies se-
lected 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 Constitu-
tions 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 qualifed for the offce.” 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 
pointment and others not, depending on small semantic differences. See 
post, at 602–605 (distinguishing, for example, between Oklahoma's law fn-
ing an elector for violating his oath (to vote for his party's candidate) and 
Washington's law fning an elector for not voting for his party's candidate 
(whom he took an oath to support)). The Electors themselves raised no 
such argument, and they were right not to do so. No matter the precise 
phrasing, a law penalizing faithless voting (like a law merely barring that 
practice) is an exercise of the State's power to impose conditions on the 
appointment of electors. See Ray v. Blair, 343 U. S. 214, 227 (1952). 
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Opinion of the Court 
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 re-
ferred 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 frst 
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 flls 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-
tem allowing proxy voting (a common practice in the found-
ing era), the proxy acts on clear instructions from the princi-
pal, with no freedom of choice. Still, we might well say that 
he cast a “ballot” or “voted,” though the preference regis-
tered 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 down-ballot 
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 vot-
ing 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 vot-
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Opinion of the Court 
ers') preference. See infra, this page and 593–597. Yet 
there is no better description for what they do in the Elec-
toral 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 refect 
their own judgments. See Brief for Petitioners 18–19; Brief 
for Independence Institute as Amicus Curiae 11–15. Ham-
ilton praised the Constitution for entrusting the Presidency 
to “men most capable of analyzing the qualities” needed 
for the offce, who would make their choices “under cir-
cumstances favorable to deliberation.” The Federalist 
No. 68, p. 410 (C. Rossiter ed. 1961). So too, John Jay pre-
dicted that the Electoral College would “be composed of the 
most enlightened and respectable citizens,” whose choices 
would refect “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 
Framers did not reduce their thoughts about electors' discre-
tion to the printed page. All that they put down about the 
electors was what we have said: that the States would ap-
point them, and that they would meet and cast ballots to 
send to the Capitol. Those sparse instructions took no posi-
tion on how independent from—or how faithful to—party 
and popular preferences the electors' votes should be. On 
that score, the Constitution left much to the future. And 
the future did not take long in coming. Almost immediately, 
presidential electors became trusty transmitters of other 
people's decisions. 
B 
“Long settled and established practice” may have “great 
weight in a proper interpretation of constitutional provi-
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Opinion of the Court 
sions.” The Pocket Veto Case, 279 U. S. 655, 689 (1929). As 
James Madison wrote, “a regular course of practice” can “liq-
uidate & settle the meaning of” disputed or indeterminate 
“terms & phrases.” Letter to S. Roane (Sept. 2, 1819), in 8 
Writings of James Madison 450 (G. Hunt ed. 1908); see The 
Federalist No. 37, at 229. The Electors make an appeal to 
that kind of practice in asserting their right to independence. 
But “our whole experience as a Nation” points in the oppo-
site direction. NLRB v. Noel Canning, 573 U. S. 513, 557 
(2014) (internal quotation marks omitted). Electors have 
only rarely exercised discretion in casting their ballots for 
President. From the frst, States sent them to the Electoral 
College—as today Washington does—to vote for pre-selected 
candidates, rather than to use their own judgment. And 
electors (or at any rate, almost all of them) rapidly settled 
into that non-discretionary role. See Ray, 343 U. S., at 
228–229. 
Begin at the beginning—with the Nation's frst contested 
election in 1796. Would-be electors declared themselves for 
one or the other party's presidential candidate. (Recall that 
in this election Adams led the Federalists against Jefferson's 
Republicans. See supra, at 583.) In some States, legisla-
tures chose the electors; in others, ordinary voters did. 
But in either case, the elector's declaration of support for 
a candidate—essentially a pledge—was what mattered. Or 
said differently, the selectors of an elector knew just what 
they were getting—not someone who would deliberate in 
good Hamiltonian fashion, but someone who would vote for 
their party's candidate. “[T]he presidential electors,” one 
historian writes, “were understood to be instruments for ex-
pressing the will of those who selected them, not independ-
ent agents authorized to exercise their own judgment.” 
Whittington, Originalism, Constitutional Construction, and 
the Problem of Faithless Electors, 59 Ariz. L. Rev. 903, 911 
(2017). And when the time came to vote in the Electoral 
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Opinion of the Court 
College, all but one elector did what everyone expected, 
faithfully representing their selectors' choice of presidential 
candidate.7 
The Twelfth Amendment embraced this new reality—both 
acknowledging and facilitating the Electoral College's emer-
gence as a mechanism not for deliberation but for party-line 
voting. Remember that the Amendment grew out of a pair 
of fascos—the election of two then-bitter rivals as President 
and Vice President, and the tie vote that threw the next elec-
tion into the House. See supra, at 583. Both had occurred 
because the Constitution's original voting procedures gave 
electors two votes for President, rather than one apiece for 
President and Vice President. Without the capacity to vote 
a party ticket for the two offces, the electors had foundered, 
and could do so again. If the predominant party's electors 
used both their votes on their party's two candidates, they 
would create a tie (see 1800). If they intentionally cast 
fewer votes for the intended vice president, they risked the 
opposite party's presidential candidate sneaking into the sec-
ond position (see 1796). By allowing the electors to vote 
separately for the two offces, the Twelfth Amendment made 
party-line voting safe. The Amendment thus advanced, 
rather than resisted, the practice that had arisen in the Na-
7 The reaction to even that single elector goes to prove the point that the 
system was non-discretionary. In the 1796 election, Pennsylvania held a 
statewide vote for electors under a winner-take-all rule (as all but two 
States have today). The people voted narrowly for the slate of electors 
supporting Jefferson. But Federalist chicanery led to the Governor's in-
clusion of two Federalist electors in the State's delegation to the Electoral 
College. One of them, Samuel Miles, agreed to cast his vote for Jefferson, 
in line with the winner-take-all expectation on which the race had been 
run. If he thought other Federalists would forgive him for acting with 
honor, he was wrong. An irate voter reacted: “[W]hen I voted for the 
[Federalist] ticket, I voted for John Adams. . . . What! do I chuse Samuel 
Miles to determine for me whether John Adams or Thomas Jefferson is 
the fttest man for President of the United States? No—I chuse him to 
act, not to think.” See Gazette of the United States, Dec. 15, 1796, p. 3, 
col. 1 (emphasis in original).

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Opinion of the Court 
tion's frst elections. An elector would promise to legisla-
tors or citizens to vote for their party's presidential and vice 
presidential candidates—and then follow through on that 
commitment. Or as the Court wrote in Ray, the new proce-
dure allowed an elector to “vote the regular party ticket” 
and thereby “carry out the desires of the people” who had 
sent him to the Electoral College. Ray, 343 U. S., at 224, 
n. 11. No independent electors need apply. 
Courts and commentators throughout the 19th century 
recognized the electors as merely acting on other people's 
preferences. Justice Story wrote that “the electors are now 
chosen wholly with reference to particular candidates,” hav-
ing either “silently” or “publicly pledge[d]” how they will 
vote. 3 Commentaries on the Constitution of the United 
States § 1457, p. 321 (1833). “[N]othing is left to the elec-
tors,” he continued, “but to register [their] votes, which are 
already pledged.” Id., at 321–322. Indeed, any “exercise 
of an independent judgment would be treated[ ] as a political 
usurpation, dishonourable to the individual, and a fraud upon 
his constituents.” Id., at 322. Similarly, William Rawle ex-
plained how the Electoral College functioned: “[T]he electors 
do not assemble in their several states for a free exercise of 
their own judgments, but for the purpose of electing” the 
nominee of “the predominant political party which has cho-
sen those electors.” A View of the Constitution of the 
United States of America 57 (2d ed. 1829). Looking back at 
the close of the century, this Court had no doubt that Story's 
and Rawle's descriptions were right. The electors, the 
Court noted, were chosen “simply to register the will of the 
appointing power in respect of a particular candidate.” Mc-
Pherson, 146 U. S., at 36. 
State election laws evolved to reinforce that development, 
ensuring that a State's electors would vote the same way 
as its citizens. As noted earlier, state legislatures early 
dropped out of the picture; by the mid-1800s, ordinary voters 
chose electors. See supra, at 584. Except that increasingly, 
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Opinion of the Court 
they did not do so directly. States listed only presidential 
candidates on the ballot, on the understanding that electors 
would do no more than vote for the winner. Usually, the 
State could ensure that result by appointing electors chosen 
by the winner's party. But to remove any doubt, States 
began in the early 1900s to enact statutes requiring electors 
to pledge that they would squelch any urge to break ranks 
with voters. See supra, at 584–585. Washington's law, 
penalizing a pledge's breach, is only another in the same vein. 
It refects a tradition more than two centuries old. In that 
practice, electors are not free agents; they are to vote for the 
candidate whom the State's voters have chosen. 
The history going the opposite way is one of anomalies 
only. The Electors stress that since the founding, electors 
have cast some 180 faithless votes for either President or 
Vice President. See Brief for Petitioners 7. But that is 180 
out of over 23,000. See Brief for Republican National Com-
mittee as Amicus Curiae 19. And more than a third of the 
faithless votes come from 1872, when the Democratic Party's 
nominee (Horace Greeley) died just after Election Day.
8 
Putting those aside, faithless votes represent just one-half of 
one percent of the total. Still, the Electors counter, Con-
gress 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 can-
not rest a claim of historical tradition on one counted vote in 
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 vot-
ing 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 specifc 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.

Cite as: 591 U. S. 578 (2020) 597 
Thomas, J., concurring in judgment 
over 200 years. And anyway, the State appointing that elec-
tor 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 his-
tory 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 its 
electors that they have no ground for reversing the vote 
of millions of its citizens. That direction accords with the 
Constitution—as well as with the trust of a Nation that here, 
We the People rule. 
The judgment of the Supreme Court of Washington is 
Affrmed. 
Justice Thomas, with whom Justice Gorsuch joins as 
to Part II, concurring in the judgment. 
The Court correctly determines that States have the 
power to require Presidential electors to vote for the candi-
date chosen by the people of the State. I disagree, however, 
with its attempt to base that power on Article II. In my 
view, the Constitution is silent on States' authority to bind 
electors in voting. I would resolve this case by simply rec-
ognizing that “[a]ll powers that the Constitution neither dele-
gates to the Federal Government nor prohibits to the States 
are controlled by the people of each State.” U. S. Term 
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598 CHIAFALO v. WASHINGTON 
Thomas, J., concurring in judgment 
Limits, Inc. v. Thornton, 514 U. S. 779, 848 (1995) (Thomas, 
J., dissenting). 
I 
A 
The Constitution does not address—expressly or by neces-
sary implication—whether States have the power to require 
that Presidential electors vote for the candidates chosen by 
the people. Article II, § 1, and the Twelfth Amendment pro-
vide for the election of the President through a body of elec-
tors. But neither speaks directly to a State's power over 
elector voting. 
The only provision in the Constitution that arguably ad-
dresses a State's power over Presidential electors is Clause 
2 of Article II, § 1. That Clause provides, in relevant part, 
that “[e]ach State shall appoint, in such Manner as the Legis-
lature thereof may direct, a Number of Electors.” As I 
have previously explained, this language “imposes an af-
frmative obligation on the States” to establish the manner 
for appointing electors. U. S. Term Limits, 514 U. S., at 864 
(dissenting opinion). By using the term “shall,” “the Clause 
expressly requires action by the States.” Id., at 862 (inter-
nal quotation marks omitted); see also Maine Community 
Health Options v. United States, 590 U. S. –––, ––– (2020) 
(“The frst sign that the statute imposed an obligation is its 
mandatory language: `shall' ”); Lexecon Inc. v. Milberg Weiss 
Bershad Hynes & Lerach, 523 U. S. 26, 35 (1998) (recognizing 
that “ `shall' . . . normally creates an obligation”). This obli-
gation to provide the manner of appointing electors does not 
expressly delegate power to States; it simply imposes an af-
frmative duty. See U. S. Term Limits, supra, at 862–863 
(Thomas, J., dissenting). 
B 
In a somewhat cursory analysis, the Court concludes that 
the States' duty to appoint electors “in such Manner as the 
Legislature thereof may direct,” Art. II, § 1, cl. 2, provides 
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Thomas, J., concurring in judgment 
an express grant of “power to appoint an elector.” Ante, 
at 589. As explained above, this interpretation erroneously 
confates the imposition of a duty with the granting of a 
power. But even setting that issue aside, I cannot agree 
with the Court's analysis. The Court appears to misinterpret 
Article II, § 1, by overreading its language as authorizing the 
broad power to impose and enforce substantive conditions on 
appointment. The Court then misconstrues the State of 
Washington's law as enforcing a condition of appointment. 
1 
The Court's conclusion that the text of Article II, § 1, ex-
pressly grants States the power to impose substantive condi-
tions or qualifcations 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 Ar-
ticle 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 elec-
tors “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 defnitions 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 604–605. 
Historical evidence from the founding also suggests that 
the “Manner” of appointment refers to the method for select-
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Thomas, J., concurring in judgment 
ing 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 fnal lan-
guage of Article II “seems to have reconciled [the] contrari-
ety of views by leaving it to the state legislatures” to set the 
manner of elector appointment. Ibid. In context, it is clear 
that the Framers understood “Manner” in Article II, § 1, to 
refer to the mode of appointing electors—consistent with the 
plain meaning of the term. 
This understanding of “Manner” was seemingly shared by 
those at the ratifying conventions. For instance, at the 
North Carolina ratifying convention, John Steele stated that 
“[t]he power over the manner of elections [under Article I, 
§ 4] does not include that of saying who shall vote.” 4 De-
bates on the Constitution 71 (J. Elliot ed. 1863) (emphasis 
added). Rather “the power over the manner only enables 
[States] to determine how these electors shall elect.” Ibid. 
(emphasis added and deleted). In short, the historical con-
text and contemporaneous use of the term “Manner” seem 
to indicate that the Framers and the ratifying public both 
understood the term in accordance with its plain meaning. 
Finally, the Court's interpretation gives the same term— 
“Manner”—different meanings in two parallel provisions of 
the Constitution. Article I, § 4, states that “[t]he Times, 
Places and Manner of holding Elections for Senators and 
Representatives, shall be prescribed in each State by the 
Legislature thereof.” In U. S. Term Limits, the Court con-
cluded that the term “Manner” in Article I includes only “a 
grant of authority to issue procedural regulations,” not “the 
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Thomas, J., concurring in judgment 
broad power to set qualifcations.” 514 U. S., at 832–833 
(majority opinion); see also id., at 861–864 (Thomas, J., dis-
senting). Yet, today, the Court appears to take the exact 
opposite view. The Court interprets the term “Manner” in 
Article II, § 1, to include the power to impose conditions or 
qualifcations on the appointment of electors. Ante, at 589. 
With respect, I demur. “When seeking to discern the 
meaning of a word in the Constitution, there is no better 
dictionary than the rest of the Constitution itself.” Arizona 
State Legislature v. Arizona Independent Redistricting 
Comm'n, 576 U. S. 787, 829 (2015) (Roberts, C. J., dissent-
ing); cf. Scialabba v. Cuellar de Osorio, 573 U. S. 41, 60 (2014) 
(Kagan, J., for the Court) (“ `[W]ords repeated in different 
parts of the same statute generally have the same meaning' ” 
(quoting Law v. Siegel, 571 U. S. 415, 422 (2014))). While 
terms may not always have the exact same meaning through-
out the Constitution, here we are interpreting the same word 
(“Manner”) in two provisions that the Court has already 
stated impose “paralle[l]” duties—setting the “ `Manner of 
holding Elections' ” and setting the “ `Manner' ” of “ `appoint-
[ing] a Number of Electors.' ” U. S. Term Limits, 514 U. S., 
at 804–805 (majority opinion). Nothing in the Constitution's 
text or history indicates that the Court should take the 
strongly disfavored step of concluding that the term “Man-
ner” has two different meanings in these closely aligned 
provisions. 
All the Court can point to in support of its position is a 
single sentence in Ray v. Blair, 343 U. S. 214 (1952), which 
suggested that a State's power to impose a requirement that 
electors pledge to vote for their party's nominee comes from 
Article II, § 1, id., at 227. But this statement is simply made 
in passing in response to one of the parties' arguments. It 
is curiously bereft of reasoning or analysis of Article II. We 
generally look to the text to govern our analysis rather than 
insouciantly follow stray, “incomplete” statements in our 
prior opinions, see Thryv, Inc. v. Click-To-Call Technologies, 
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LP, 590 U. S. 45, 59 (2020). In my view, we should be guided 
by the text here. 
2 
Even accepting the Court's broad interpretation of Clause 
2 of Article II, § 1, I cannot agree with its determination that 
this Clause expressly authorizes the Washington law at issue 
here. In an attempt to tie Washington's law to the State's 
“power to appoint an elector,” see ante, at 589, the Court 
construes Wash. Rev. Code § 29A.56.340 (2016) as “enforc[-
ing] a pledge.” See ante, at 589; see also ante, at 581, 587– 
588, 597. But § 29A.56.340 did not involve the enforcement 
of a pledge or relate to the appointment process at all.
1 It 
simply regulated electors' votes, unconnected to the appoint-
ment process. 
To understand the Court's error, a brief summary of its 
theory is necessary. According to the Court, Article II, § 1, 
grants States “the power to appoint” Presidential electors 
“in such Manner as the Legislature thereof may direct.” 
Ante, at 589. That “power to appoint an elector,” the Court 
states, “includes power to condition his appointment.” Ibid. 
The power to condition appointment in turn allows the State 
to insist that an “elector pledge to cast his Electoral College 
ballot for his party's presidential nominee.” Ibid. And 
fnally, “the State's appointment power . . . enables the 
enforcement of a pledge.” Ibid. The Court's theory is 
entirely premised on the State exercising a power to 
appoint. 
Assuming the Court has correctly interpreted Article II, 
§ 1, there are certain circumstances in which this theory 
could stand. Some States expressly require electors to 
pledge to vote for a party nominee as a condition of appoint-
ment and then impose a penalty if electors violate that 
1 In 2019, Washington revised its laws addressing Presidential electors, 
eliminating the provision imposing a civil penalty on faithless electors. 
See 2019 Wash. Sess. Laws pp. 755–758. 
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Thomas, J., concurring in judgment 
pledge. For example, under Oklahoma law, “[e]very party 
nominee for Presidential Elector shall subscribe to an oath, 
stating that said nominee, if elected, will cast a ballot for 
the persons nominated for the offces of President and Vice 
President by the nominee's party.” Okla. Stat., Tit. 26, § 10– 
102 (2019). Oklahoma then penalizes the violation of that 
oath: “Any Presidential Elector who violates his oath as a 
Presidential Elector shall be guilty of a misdemeanor and, 
upon conviction thereof, shall be punished by a fne of not 
more than One Thousand Dollars ($1,000.00).” § 10–109 
(emphasis added). Other States have similar laws, frst 
requiring a pledge as a condition of appointment and then 
penalizing the violation of that pledge. See, e. g., Ind. Code 
§ 3–10–4–1.7(a) (2019) (imposing pledge requirement); § 3– 
10–4–9(d) (stating that “[a] presidential elector who . . . pre-
sents a ballot marked in violation of the presidential elec-
tor's pledge executed under section 1.7 . . . of this chapter , 
vacates the offce of presidential elector” (emphasis added)); 
Minn. Stat. § 208.43 (2020 Cum. Supp.) (imposing pledge re-
quirement); § 208.46(c) (stating that “[a]n elector who . . . pre-
sents a ballot marked in violation of the elector's pledge 
executed under section 208.43 . . . vacates the offce of elec-
tor” (emphasis added)).
2 
But not all States attempt to bind electors' votes through 
the appointment process. Some States simply impose a 
legal duty that has no connection to elector appointment. 
See ante, at 585. For example, New Mexico imposes a legal 
duty on its electors: “All presidential electors shall cast their 
ballots in the electoral college for the candidates of the politi-
cal party which nominated them as presidential electors.” 
N. M. Stat. Ann. § 1–15–9(A) (Supp. 2011). And “[a]ny presi-
dential elector who casts his ballot in violation of [this duty] 
is guilty of a fourth degree felony.” § 1–15–9(B). California 
2 See also Mont. Code Ann. §§ 13–25–304, 13–25–307(4) (2019); Neb. Rev. 
Stat. §§ 32–713(2), 32–714(4) (2016); Wash. Rev. Code §§29A.56.084, 
29A.56.090(3) (2019). 
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has a similar system. It frst imposes a legal duty on elec-
tors to vote for the nominated candidates of the political 
party they represent if those candidates are alive. Cal. 
Elec. Code Ann. § 6906 (West 2019). It then imposes a pun-
ishment on “[e]very person charged with the performance of 
any duty under any law of this state relating to elections, 
who willfully neglects or refuses to perform it.” § 18002.
3 
These laws penalize electors for their faithless votes. But 
they do not attempt to regulate the votes of electors through 
the appointment process. In fact, these laws have nothing 
to do with elector appointment. 
The Court recognizes the distinction between these two 
types of laws, i. e., laws enforcing appointment conditions 
and laws that regulate electors outside of the appointment 
process. See ante, at 585 (recognizing that some States 
“merely impose [a] duty by law”). But it claims this is 
merely a “small semantic differenc[e].” Ante, at 590, n. 6. 
Far from being semantic, the difference between the power 
to impose a “condition of appointment” and the power to im-
pose restrictions on electors that have nothing to do with 
appointment is fundamental to the Court's textual argu-
ment. The Court's entire analysis is premised on States' 
purported Article II “power to appoint an elector” and “to 
condition his appointment.” Ante, at 589. The Court does 
not, and cannot, claim that the text of Article II provides 
States power over anything other than the appointment of 
electors. See ante, at 589–590. 
Here, the challenged Washington law did not enforce any 
appointment condition. It provided that “[a]ny elector who 
3 Michigan likewise does not regulate electors through the appointment 
process. Under Michigan law, the failure of an already appointed elector 
to resign “signifes” that the elector “consent[s] to serve and to cast his 
vote for the candidates for president and vice-president appearing on the 
Michigan ballot of the political party which nominated him.” Mich. Comp. 
Laws § 168.47 (2008). Attempting to cast a vote for another candidate 
“constitutes a resignation from the offce of elector.” Ibid. 
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Cite as: 591 U. S. 578 (2020) 605 
Thomas, J., concurring in judgment 
votes for a person or persons not nominated by the party of 
which he or she is an elector is subject to a civil penalty of 
up to one thousand dollars.” Wash. Rev. Code § 29A.56.340 
(2016). Unlike the laws of Oklahoma, Indiana, Minnesota 
and the other States discussed above, a violation of 
§ 29A.56.340 was not predicated on violating a pledge or any 
other condition of appointment. In fact, it did not even men-
tion a pledge, which was set forth in a separate, unreferenced 
provision. See § 29A.56.320. Thus, § 29A.56.340 had no 
connection to the appointment process and could be enforced 
independent of the existence of any pledge requirement. 
While the Court's description of § 29A.56.340 as a law enforc-
ing a condition of appointment may be helpful for the Court's 
claim that Washington's law was rooted in Article II, § 1's 
“power to appoint,” it is simply not accurate. Thus, even 
accepting the Court's strained reading of Article II, § 1's 
text, I cannot agree with the Court's effort to reconcile 
Washington's law with its desired theory. 
In short, the Constitution does not speak to States' power 
to require Presidential electors to vote for the candidates 
chosen by the people. The Court's attempt to ground such 
a power in Article II's text falls short. Rather than contort 
the language of both Article II and the state statute, I would 
acknowledge that the Constitution simply says nothing about 
the States' power in this regard. 
II 
When the Constitution is silent, authority resides with the 
States or the people. This allocation of power is both em-
bodied in the structure of our Constitution and expressly re-
quired by the Tenth Amendment. The application of this 
fundamental principle should guide our decision here. 
A 
“The ultimate source of the Constitution's authority is the 
consent of the people of each individual State.” U. S. Term 
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606 CHIAFALO v. WASHINGTON 
Thomas, J., concurring in judgment 
Limits, 514 U. S., at 846 (Thomas, J., dissenting). When the 
States ratifed the Federal Constitution, the people of each 
State acquiesced in the transfer of limited power to the Fed-
eral Government. They ceded only those powers granted to 
the Federal Government by the Constitution. “The Federal 
Government and the States thus face different default rules: 
Where the Constitution is silent about the exercise of a 
particular power[,] the Federal Government lacks that 
power and the States enjoy it.” Id., at 848; see also United 
States v. Comstock, 560 U. S. 126, 159 (2010) (Thomas, J., 
dissenting). 
This allocation of power is apparent in the structure of our 
Constitution. The Federal Government “is acknowledged 
by all to be one of enumerated powers.” McCulloch v. 
Maryland, 4 Wheat. 316, 405 (1819). “[T]he powers dele-
gated by the . . . Constitution to the federal government are 
few and defned,” while those that belong to the States “re-
main . . . numerous and indefnite.” The Federalist No. 45, 
p. 292 (C. Rossiter ed. 1961) (J. Madison). Article I, for ex-
ample, enumerates various legislative powers in § 8, but it 
specifcally limits Congress' authority to the “legislative 
Powers herein granted,” § 1. States face no such constraint 
because the Constitution does not delineate the powers of 
the States. Article I, § 10, contains a brief list of powers 
removed from the States, but States are otherwise “free to 
exercise all powers that the Constitution does not withhold 
from them.” Comstock , supra , at 159 ( Thomas , J., 
dissenting). 
This structural principle is explicitly enshrined in the 
Tenth Amendment. That Amendment states that “[t]he 
powers not delegated to the United States by the Constitu-
tion, nor prohibited by it to the States, are reserved to the 
States respectively, or to the people.” As Justice Story ex-
plained, “[t]his amendment is a mere affrmation of what, 
upon any just reasoning, is a necessary rule of interpreting

Cite as: 591 U. S. 578 (2020) 607 
Thomas, J., concurring in judgment 
the constitution. Being an instrument of limited and enu-
merated powers, it follows irresistibly, that what is not con-
ferred, is withheld, and belongs to the state authorities.” 3 
J. Story, Commentaries on the Constitution of the United 
States § 1900, p. 752 (1833); see also Alden v. Maine, 527 U. S. 
706, 714 (1999); New York v. United States, 505 U. S. 144, 156 
(1992). In other words, the Tenth Amendment “states but a 
truism that all is retained which has not been surrendered,” 
United States v. Darby, 312 U. S. 100, 124 (1941), “mak[ing] 
clear that powers reside at the state level except where the 
Constitution removes them from that level,” U. S. Term Lim-
its, supra, at 848 (Thomas, J., dissenting); see also Garcia v. 
San Antonio Metropolitan Transit Authority , 469 U. S. 528, 
549 (1985). 
Thus, “[w]here the Constitution is silent about the exercise 
of a particular power[,] that is, where the Constitution does 
not speak either expressly or by necessary implication,” the 
power is “either delegated to the state government or re-
tained by the people.” U. S. Term Limits, supra, at 847– 
848 (Thomas, J., dissenting); cf. Martin v. Hunter's Lessee, 1 
Wheat. 304, 326 (1816) (stating that the Federal Govern-
ment's powers under the Constitution must be “expressly 
given, or given by necessary implication”). 
B 
This fundamental allocation of power applies in the con-
text of the electoral college. Article II, § 1, and the Twelfth 
Amendment address the election of the President through a 
body of electors. These sections of the Constitution provide 
the Federal Government with limited powers concerning the 
election, set various requirements for the electors, and im-
pose an affrmative obligation on States to appoint electors. 
Art. II, § 1; Amdt. 12. Each of these directives is consistent 
with the general structure of the Constitution and the princi-
ple of reserved powers. See supra, at 605–607; U. S. Term 
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608 CHIAFALO v. WASHINGTON 
Thomas, J., concurring in judgment 
Limits, supra, at 863 (Thomas, J., dissenting). Put simply, 
nothing in the text or structure of Article II and the Twelfth 
Amendment contradicts the fundamental distribution of 
power preserved by the Tenth Amendment. 
Of course, the powers reserved to the States concerning 
Presidential electors cannot “be exercised in such a way as 
to violate express constitutional commands.” Williams v. 
Rhodes, 393 U. S. 23, 29 (1968). That is, powers related to 
electors reside with States to the extent that the Constitu-
tion does not remove or restrict that power. Thus, to invali-
date a state law, there must be “something in the Federal 
Constitution that deprives the [States of] the power to enact 
such [a] measur[e].” U. S. Term Limits, supra, at 850 
(Thomas, J., dissenting). 
As the Court recognizes, nothing in the Constitution pre-
vents States from requiring Presidential electors to vote for 
the candidate chosen by the people. Petitioners ask us to 
infer a constitutional right to elector independence by inter-
preting the terms “appoint,” “Electors,” “vote,” and “by Bal-
lot” to align with the Framers' expectations of discretion in 
elector voting. But the Framers' expectations aid our inter-
pretive inquiry only to the extent that they provide evidence 
of the original public meaning of the Constitution. They 
cannot be used to change that meaning. As the Court ex-
plains, the plain meaning of the terms relied on by petition-
ers does not appear to “connote independent choice.” Ante, 
at 591. Thus, “the original expectation[s]” of the Framers 
as to elector discretion provide “no reason for holding that 
the power confded to the States by the Constitution has 
ceased to exist.” McPherson, 146 U. S., at 36; see also ante, 
at 592. 
* * * 
“The people of the States, from whom all governmental 
powers stem, have specifed that all powers not prohibited 
to the States by the Federal Constitution are reserved `to 
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Cite as: 591 U. S. 578 (2020) 609 
Thomas, J., concurring in judgment 
the States respectively, or to the people.' ” U. S. Term Lim-
its, 514 U. S., at 852 (Thomas, J., dissenting). Because I 
would decide this case based on that fundamental principle, 
I concur only in the judgment. 
Page Proof Pending Publication

Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 591 U. S. Part 2 Pages 578–609 OFFICIAL REPORTS OF THE SUPREME COURT July 6, 2020 Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court o…

• #2

  nominee—and the state voters' choice—for President. Pp. 587–597. (a) Article II, § 1 gives the States the authority to appoint electors “in such Manner as the Legislature thereof may direct.” This Court has described that clause as “conveying the broadest power of determi- nation” over who becomes an elector. McPh…

• #3

  Veto Case , 279 U. S. 655, 689. The Electors make an appeal to that kind of practice in asserting their right to independence, but “our whole experience as a Nation” points in the opposite direction. NLRB v. Noel Canning, 573 U. S. 513, 557. From the frst elections under the Consti- tution, States sent electors to…

• #4

  Dakota, and Paul S. Swedlund, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Steve Mar- shall of Alabama, Kevin G. Clarkson of Alaska, Mark Brnovich of Ari- zona, Xavier Becerra of California, William Tong of Connecticut, Kathy Jennings of Delaware, Karl A. …

• #5

  than the presidential candidate who won his State's popular vote. We hold that a State may do so. I Our Constitution's method of picking Presidents emerged from an eleventh-hour compromise. The issue, one delegate ring of Virginia, Patrick Morrisey of West Virginia, Josh L. Kaul of Wis- consin, and Bridget Hill …

• #6

  “Each State shall appoint, in such Manner as the Legis- lature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Of- fce of Trust or Proft under the United S…

• #7

  “The Electors shall meet in their respective states and vote by ballot for President and Vice-President . . . ; they shall name in their ballots the person voted for as Presi- dent, and in distinct ballots the person voted for as Vice- President, and they shall make distinct lists of all per- sons voted for as Pr…

• #8

  Republican will get four electors and the Democrat will get one. Here too, though, the States use party slates to pick the electors, in order to refect the relevant popular preferences (whether in the State or in an individual district). Page Proof Pending Publication Cite as: 591 U. S. 578 (2020) 585 Opinion of…

• #9

  Code §§ 29A.56.084, 29A.56.090 (2019). Page Proof Pending Publication 586 CHIAFALO v. WASHINGTON Opinion of the Court before the appointment can go into effect, each elector must “execute [a] pledge” agreeing to “mark [her] ballots” for the presidential (and vice presidential) candidate of the party nominating …

• #10

  it up. See 193 Wash. 2d, at 393–399, 441 P. 3d, at 813–816. In the state court's view, Washington's penalty provision made no difference. Article II of the Constitution, the court noted, grants broad authority to the States to appoint elec- tors, and so to impose conditions on their appointments. See id., at 393,…

• #11

  trary, “[h]istory teaches that the electors were expected to support the party nominees” as far back as the earliest contested presidential elections. Id., at 228. “[L]ongstand- ing practice” thus “weigh[ed] heavily” against Blair's claim. Id., at 228–230. And current voting procedures did too. The Court noted th…

• #12

  Constitution poses an obstacle—a State can add, as Washing- ton did, an associated condition of appointment: It can de- mand that the elector actually live up to his pledge, on pain of penalty. Which is to say that the State's appointment power, barring some outside constraint, enables the enforce- ment of a pled…

• #13

  U. S. Constitution, incorporated language that would have made this case look quite different. Both State Constitu- tions 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 qualifed…

• #14

  can signify a mechanical act. Or similarly, suppose in a sys- tem allowing proxy voting (a common practice in the found- ing era), the proxy acts on clear instructions from the princi- pal, with no freedom of choice. Still, we might well say that he cast a “ballot” or “voted,” though the preference regis- tered w…

• #15

  send to the Capitol. Those sparse instructions took no posi- tion on how independent from—or how faithful to—party and popular preferences the electors' votes should be. On that score, the Constitution left much to the future. And the future did not take long in coming. Almost immediately, presidential electors b…

• #16

  Whittington, Originalism, Constitutional Construction, and the Problem of Faithless Electors, 59 Ariz. L. Rev. 903, 911 (2017). And when the time came to vote in the Electoral Page Proof Pending Publication Page Proof Pending Publication 594 CHIAFALO v. WASHINGTON Opinion of the Court College, all but one elect…

• #17

  Miles to determine for me whether John Adams or Thomas Jefferson is the fttest man for President of the United States? No—I chuse him to act, not to think.” See Gazette of the United States, Dec. 15, 1796, p. 3, col. 1 (emphasis in original). Cite as: 591 U. S. 578 (2020) 595 Opinion of the Court tion's frst ele…

• #18

  596 CHIAFALO v. WASHINGTON Opinion of the Court they did not do so directly. States listed only presidential candidates on the ballot, on the understanding that electors would do no more than vote for the winner. Usually, the State could ensure that result by appointing electors chosen by the winner's party. But…

• #19

  Thomas, J., concurring in judgment over 200 years. And anyway, the State appointing that elec- tor 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 …

• #20

  elector voting. The only provision in the Constitution that arguably ad- dresses a State's power over Presidential electors is Clause 2 of Article II, § 1. That Clause provides, in relevant part, that “[e]ach State shall appoint, in such Manner as the Legis- lature thereof may direct, a Number of Electors.” As I …

• #21

  § 1, seems to stretch the plain meaning of the Constitution's text. Article II, § 1, provides that States shall appoint elec- tors “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 La…

• #22

  [States] to determine how these electors shall elect.” Ibid. (emphasis added and deleted). In short, the historical con- text and contemporaneous use of the term “Manner” seem to indicate that the Framers and the ratifying public both understood the term in accordance with its plain meaning. Finally, the Court's …

• #23

  single sentence in Ray v. Blair, 343 U. S. 214 (1952), which suggested that a State's power to impose a requirement that electors pledge to vote for their party's nominee comes from Article II, § 1, id., at 227. But this statement is simply made in passing in response to one of the parties' arguments. It is curio…

• #24

  eliminating the provision imposing a civil penalty on faithless electors. See 2019 Wash. Sess. Laws pp. 755–758. Page Proof Pending Publication Cite as: 591 U. S. 578 (2020) 603 Thomas, J., concurring in judgment pledge. For example, under Oklahoma law, “[e]very party nominee for Presidential Elector shall subsc…

• #25

  has a similar system. It frst imposes a legal duty on elec- tors to vote for the nominated candidates of the political party they represent if those candidates are alive. Cal. Elec. Code Ann. § 6906 (West 2019). It then imposes a pun- ishment on “[e]very person charged with the performance of any duty under any l…

• #26

  (2016). Unlike the laws of Oklahoma, Indiana, Minnesota and the other States discussed above, a violation of § 29A.56.340 was not predicated on violating a pledge or any other condition of appointment. In fact, it did not even men- tion a pledge, which was set forth in a separate, unreferenced provision. See § 29…

• #27

  This allocation of power is apparent in the structure of our Constitution. The Federal Government “is acknowledged by all to be one of enumerated powers.” McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). “[T]he powers dele- gated by the . . . Constitution to the federal government are few and defned,” while those…

• #28

  power is “either delegated to the state government or re- tained by the people.” U. S. Term Limits, supra, at 847– 848 (Thomas, J., dissenting); cf. Martin v. Hunter's Lessee, 1 Wheat. 304, 326 (1816) (stating that the Federal Govern- ment's powers under the Constitution must be “expressly given, or given by nece…

• #29

  plains, the plain meaning of the terms relied on by petition- ers does not appear to “connote independent choice.” Ante, at 591. Thus, “the original expectation[s]” of the Framers as to elector discretion provide “no reason for holding that the power confded to the States by the Constitution has ceased to exist.”…