Law professor Edward B. Foley has filed this amicus curiae brief in the U.S. Supreme Court in Chiafalo v State of Washington, the case over presidential electors and whether they can vote for the candidate of their choice. The amicus presents history, showing that in the debates over whether to pass the U.S. Constitution during 1787-1789, writings from that period showed that everyone thought the electors would exercise judgment.

The amicus also has history about the Twelfth Amendment, which went into effect in 1804 and which specified that every elector should vote separately for president and vice-president. Previously all electors merely cast two votes, and whoever got the second highest number of electoral votes nationwide became vice-president. Some opponents of elector freedom have argued that the Twelfth Amendment ended elector independence. But Foley shows that the Twelfth Amendment passed in Congress without a single vote to spare, and it only passed because its backers assured everyone that the amendment did not change anything except to provide for separate ballots for president and vice-president.