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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–465

															_________________

															PETER B. CHIAFALO, LEVI JENNET GUERRA, and
ESTHER VIRGINIA JOHN, PETITIONERS v. WASHINGTON

															on writ of certiorari to the supreme court of
washington

															[July 6, 2020]

															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 political party
whose candidate has won the State’s popular vote. Most States also
compel electors to pledge in advance to support 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 to the Convention remarked, was “the most difficult 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 Committee of Eleven to devise a solution.
The Committee returned 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
“difficulty of finding an unexceptionable [selection] process” was
“deeply felt by the Convention.” Letter to G. Hay (Aug. 23, 1823),
in 3 Farrand 458. Because “the final arrangement of it took place
in the latter stage of the Session,” Madison continued, “it was not
exempt from a degree of the hurrying influence 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 delegates soon finished 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 Legislature 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 Office of Trust or Profit
under the United States, shall be appointed an Elector.”

															The next clause (but don’t get attached: it will
soon be superseded) 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 field. The
candidate with the greatest number of votes, assuming he had a
majority, would become President. The runner-up 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 first
contested presidential election occurred in 1796, after George
Washington’s retirement. John Adams came in first among the
candidates, and Thomas Jefferson second. That meant the leaders 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 first and Burr just behind him.
Instead, Jefferson came in first 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. (Alexander Hamilton secured his place on the Broadway
stage—but possibly in the cemetery too—by lobbying Federalists 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 Electoral 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, ratified 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 President, and in distinct ballots the
person voted for as Vice-President, and they shall make distinct
lists of all persons voted for as President, and of all persons
voted for as Vice-President, and of the number of votes for each,
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
elections, state legislatures mostly picked the electors, with the
majority party sending a delegation of its choice to the Electoral
College. By 1832, though, all States but one had introduced popular
presidential elections. See Peirce & Longley, The People’s
President, at 45. At first, 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 chosen by the party whose presidential
nominee had won statewide, again expecting that they would vote for
that candidate in the Electoral College.[ 1 ]

															In the 20th century, many States enacted
statutes meant to guarantee that outcome—that is, to prohibit
so-called 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) candidate. 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 presidential 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 immediately remove a faithless
elector from his position, substituting an alternate whose vote the
State reports instead. A few States impose a monetary fine on any
elector who flouts 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 fielding presidential candidates to
nominate a slate of electors. See Wash. Rev. Code §29 A. 56.320(1).
On Election Day, the State gives voters a ballot listing only the
candidates themselves. See §29 A. 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
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. §29 A. 56.084. And the elector must comply with
that pledge, or else face a sanction. At the time relevant here,
the punishment was a civil fine of up to $1,000. See §29 A. 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 electors 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 Nation 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 fined the Electors $1,000 apiece for breaking their pledges
to support the same candidate its voters had.

															The Electors challenged their fines in state
court, arguing that the Constitution gives members of the Electoral
College the right to vote however they please. The Washington
Superior Court rejected the Electors’ claim in an oral decision,
and the State’s Supreme Court affirmed that judgment. See 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 electors, 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 legislature.” 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. Colorado 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
discretion.” Id., at 955.

															We granted certiorari to resolve the split. 589
U. S. ___ (2020). We now affirm 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 fielding presidential candidates. 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 candidate. Blair challenged the pledge
mandate. He argued that the “intention of the Founders was that
[presidential] electors should exercise their judgment in voting.” Ray , 343 U. S., at 225. The pledge requirement, he
claimed, “interfere[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 contrary, “[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]ongstanding 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,
because 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 sanctions? See id ., at 230. Or would doing so violate
an elector’s “constitutional freedom” to “vote as he may choose” in
the Electoral College? Ibid . Today, we take up that
question. We uphold Washington’s penalty-backed pledge law for
reasons much like those given in Ray . The Constitution’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 other constitutional constraint.[ 4 ] As noted earlier, each State may appoint electors “in
such Manner as the Legislature thereof may direct.” Art. II,
§1, cl. 2; see supra , at 2. This Court has described
that clause as “conveying the broadest power of determination” over
who becomes an elector. 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 qualify 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 popular 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 Washington did, an associated 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
enforcement of a pledge like Washington’s.[ 6 ]

															And nothing in the Constitution expressly
prohibits States from taking away presidential electors’ voting
discretion as Washington does. The Constitution is barebones about
electors. 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 constitutional drafters of their time did. In the founding
era, two States—Maryland and Kentucky—used electoral bodies
selected 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 Constitutions 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 qualified for the
office.” 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 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 referred 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
first 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
fills 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 system allowing proxy
voting (a common practice in the founding era), the proxy acts on
clear instructions from the principal, with no freedom of choice.
Still, we might well say that he cast a “ballot” or “voted,” though
the preference registered 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 voting 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 voters’) preference. See infra , at 13–17. Yet there is no better description for what
they do in the Electoral 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
reflect their own judgments. See Brief for Petitioners 18–19; Brief
for Independence Institute as Amicus Curiae 11–15. Hamilton
praised the Constitution for entrusting the Presidency to “men most
capable of analyzing the qualities” needed for the office, who
would make their choices “under circumstances favorable to
deliberation.” The Federalist No. 68, p. 410 (C. Rossiter ed.
1961). So too, John Jay predicted that the Electoral College would
“be composed of the most enlightened and respectable citizens,”
whose choices would reflect “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’ discretion to
the printed page. All that they put down about the electors was
what we have said: that the States would appoint them, and that
they would meet and cast ballots to send to the Capitol. Those
sparse instructions took no position 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
provisions.” The Pocket Veto Case , 279
U.S. 655 , 689 (1929). As James Madison wrote, “a regular course
of practice” can “liquidate & 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 225. 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 (2014) (internal quotation marks omitted). Electors
have only rarely exercised discretion in casting their ballots for
President. From the first, 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 first
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 3.) In some States, legislatures
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 expressing the will of those who
selected them, not independent 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 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
emergence as a mechanism not for deliberation but for party-line
voting. Remember that the Amendment grew out of a pair of
fiascos—the election of two then-bitter rivals as President and
Vice President, and the tie vote that threw the next election into
the House. See supra , at 3. 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
offices, 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 second position (see 1796). By allowing the electors to
vote separately for the two offices, the Twelfth Amendment made
party-line voting safe. The Amendment thus advanced, rather than
resisted, the practice that had arisen in the Nation’s first
elections. An elector would promise to legislators 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 procedure 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,” having 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 electors,” 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 explained 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
chosen 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.” McPherson , 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 4. Except that increasingly, 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 5. Washington’s law,
penalizing a pledge’s breach, is only another in the same vein. It
reflects 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 Committee 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,
Congress 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 cannot rest a claim of historical
tradition on one counted vote in over 200 years. And anyway, the
State appointing that elector 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 history 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

															Affirmed. Notes 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 candidate wins the popular vote in Nebraska as a whole
but loses to the Democratic 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 reflect the relevant
popular preferences (whether in the State or in an individual
district). 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 §§29 A. 56.084, 29 A. 56.090
(2019). 3 Since the events in this
case, Washington has repealed the fine. It now enforces pledges
only by removing and replacing faithless electors. See Wash. Rev.
Code §29 A. 56.090(3) (2019). 4 Checks on a State’s power
to appoint electors, or to impose conditions on an appointment, can
theoretically come from anywhere in the Constitution. A State, for
example, cannot select its electors in a way that violates the
Equal Protection Clause. And if a State adopts a condition on its
appointments that effectively imposes new requirements on
presidential candidates, the condition may conflict with the
Presidential Qualifications 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 2 (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 fine distinctions among state laws punishing
faithless voting—treating some as conditions of appointment and
others not, depending on small semantic differences. See post, at 6–9 (distinguishing, for example, between
Oklahoma’s law fining an elector for violating his oath (to vote
for his party’s candidate) and Washington’s law fining 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.
154 , 227 (1952). 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 inclusion 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 fittest 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). 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
voting 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 specific 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. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 19–465

															_________________

															PETER B. CHIAFALO, LEVI JENNET GUERRA, and
ESTHER VIRGINIA JOHN, PETITIONERS v. WASHINGTON

															on writ of certiorari to the supreme court of
washington

															[July 6, 2020]

															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
candidate 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 recognizing that “[a]ll
powers that the Constitution neither delegates to the Federal
Government nor prohibits to the States are controlled by the people
of each State.” U. S. Term Limits , Inc. v. Thornton , 514 U.S.
779 , 848 (1995) (Thomas, J., dissenting).

															I

															A

															The Constitution does not address—expressly or
by necessary 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 provide for the
election of the President through a body of electors. But neither
speaks directly to a State’s power over elector voting.

															The only provision in the Constitution that
arguably addresses 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 Legislature
thereof may direct, a Number of Electors.” As I have previously
explained, this language “imposes an affirmative 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 (internal quotation marks
omitted); see also Maine Community Health Options v. United States , 590 U. S. ___, ___ (2020) (slip op., at
12) (“The first 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’ [n]ormally
creates an obligation”). This obligation to provide the manner of
appointing electors does not expressly delegate power to States; it
simply imposes an affirmative 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 an express grant of “power to appoint an elector.” Ante, at 9. As explained above, this interpretation
erroneously conflates 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, 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 final language of
Article II “seems to have reconciled [the] contrariety 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 Debates 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 context 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 concluded that the term
“Manner” in Article I includes only “a grant of authority to issue
procedural regulations,” not “the broad power to set
qualifications.” 514 U. S., at 832–833 (majority opinion); see
also id., at 861–864 (Thomas, J., dissenting). 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 qualifications on the appointment of
electors. Ante, at 9–10.

															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., dissenting);
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 throughout 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 “Manner” 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, LP , 590 U. S. ___, ___
(2020) (slip op., at 13). 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
9, the Court construes Wash. Rev. Code §29 A. 56.340 (2016) as
“enforc[ing] a pledge.” See ante, at 10; see also ante , at 1–2, 7–9, 17. But §29 A. 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 appointment 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 9.
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.” Ante, at 9–10 . And
finally, “the State’s appointment power . . . enables the
enforcement of a pledge.” Ante , at 10 . 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 appointment
and then impose a penalty if electors violate that 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 offices 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 fine of not more than One Thousand Dollars
($1,000.00).” §10–109 (emphasis added). Other States have similar
laws, first 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
. . . presents a ballot marked in violation of the
presidential elector’s pledge executed under section 1.7
. . . of this chapter , vacates the office of
presidential elector” (emphasis added)); Minn. Stat. §208.43 (2020
Cum. Supp.) (imposing pledge requirement); §208.46(c) (stating that
“[a]n elector who . . . presents a ballot marked in violation of the elector’s pledge executed under section
208.43 . . . vacates the office of elector” (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 5. 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 political party
which nominated them as presidential electors.” N. M. Stat.
Ann. §1–15–9(A) (Supp. 2011). And “[a]ny presidential elector who
casts his ballot in violation of [this duty] is guilty of a fourth
degree felony.” §1–15–9(B). California has a similar system. It
first imposes a legal duty on electors 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 punishment 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 5 (recognizing that some
States “merely impose [a] duty by law”). But it claims this is
merely a “small semantic differenc[e].” Ante, at 10,
n. 6. Far from being semantic, the difference between the
power to impose a “condition of appointment” and the power to
impose restrictions on electors that have nothing to do
with appointment is fundamental to the Court’s textual
argument. The Court’s entire analysis is premised on States’
purported Article II “power to appoint an elector” and “to
condition his appointment.” Ante , at 9. 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 9–10.

															Here, the challenged Washington law did not
enforce any appointment condition. It provided that “[a]ny elector
who 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 §29 A. 56.340 (2016).
Unlike the laws of Oklahoma, Indiana, Minnesota and the other
States discussed above, a violation of §29 A. 56.340 was not
predicated on violating a pledge or any other condition of
appointment. In fact, it did not even mention a pledge, which was
set forth in a separate, unreferenced provision. See §29 A. 56.320.
Thus, §29 A. 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 §29 A. 56.340 as a
law enforcing 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 embodied in the structure of our Constitution and expressly
required 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 Limits , 514 U. S., at 846 (Thomas, J.,
dissenting). When the States ratified the Federal Constitution, the
people of each State acquiesced in the transfer of limited power to
the Federal 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 delegated by the . . . Constitution to the
federal government are few and defined,” while those that belong to
the States “remain . . . numerous and indefinite.” The
Federalist No. 45, p. 292 (C. Rossiter ed. 1961) (J. Madison).
Article I, for example, enumerates various legislative powers in
§8, but it specifically 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 Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people.” As Justice Story explained,
“[t]his amendment is a mere affirmation of what, upon any just
reasoning, is a necessary rule of interpreting the constitution.
Being an instrument of limited and enumerated powers, it follows
irresistibly, that what is not conferred, 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 Limits , 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 retained 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 Government’s powers under the
Constitution must be “expressly given, or given by necessary
implication”).

															B

															This fundamental allocation of power applies
in the context 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 impose an affirmative
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 principle of reserved powers.
See supra, at 9–10; U. S. Term 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 Constitution does not remove or
restrict that power. Thus, to invalidate 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 , 514 U. S., at 850 (Thomas, J., dissenting).

															As the Court recognizes, nothing in the
Constitution prevents 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
interpreting the terms “appoint,” “Electors,” “vote,” and “by
Ballot” to align with the Framers’ expectations of
discretion in elector voting. But the Framers’ expectations aid our
interpretive 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 explains, the plain
meaning of the terms relied on by petitioners do not appear to
“connote independent choice.” Ante , at 11. Thus, “the
original expectation[s]” of the Framers as to elector discretion
provide “no reason for holding that the power confided to the
States by the Constitution has ceased to exist.” McPherson ,
146 U. S., at 36; see also ante, at 12–13.

															*  *  *

															“The people of the States, from whom all
governmental powers stem, have specified that all powers not
prohibited to the States by the Federal Constitution are reserved
‘to the States respectively, or to the people.’ ” U. S. Term Limits , supra , at 852 (Thomas, J.,
dissenting). Because I would decide this case based on that
fundamental principle, I concur only in the judgment. Notes 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. 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 §§29 A. 56.084, 29 A. 56.090(3)
(2019). 3 Michigan likewise does
not regulate electors through the appointment process. Under
Michigan law, the failure of an already appointed elector to resign
“signifies” 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 office of
elector.” Ibid.