Making Every Vote Count Foundation has submitted this amicus curiae brief to the U.S. Supreme Court in Chiafalo v State of Washington. It points out that no matter how the U.S. Supreme Court decides the case, it is likely that many states will need to change their election laws regarding presidential electors before the November 2020 election. It points out that in 39 states, the legislature is not expected to be in session between July 1, 2020, and November 3, 2020.

The amicus suggests that states might want to change their general election ballots to list the candidates for presidential elector. Currently only Arizona, Idaho, North Dakota, Oklahoma, and South Dakota show their names. Of course, California has 55 electoral votes, so a California ballot that listed all 55 candidates for each presidential candidate would be unwieldy.

The amicus suggests that states might want to make it possible for unpledged electors to qualify. And the amicus suggests that some states might want to put a question on the ballot, asking if the voter wants to cast his or her vote for the presidential candidate who received the most popular votes in the nation.

The amicus asks if states might want to have campaign finance regulations concerning expenditures for lobbying presidential electors. It asks if states might want to pass laws giving political parties the ability to require the presidential elector candidates to pledge themselves to vote for their party’s presidential nominee. These are all very interesting questions that arise once the idea takes hold that the presidential electors, not the presidential candidates, are the true candidates in November.

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.