Liquidating Elector Discretion

28 Pages Posted: 25 Feb 2020 Last revised: 22 Sep 2020

Date Written: April 1, 2020


The U.S. Supreme Court will soon decide whether states may remove and/or punish faithless electors. Petitioners arguing against elector discretion point to a 2014 case called National Labor Relations Board v. Noel Canning which blessed a form of constitutional interpretation that looks to settled practice (or “liquidation,” as Madison called it) to resolve constitutional ambiguity. Petitioners argue that electors following the majority will of voters in their state is settled practice. This short essay engages this assertion, looking at Electoral College norms and practice in the states to suggest that, while its exercise is rare, elector discretion is the understood and accepted default.

Keywords: Electoral College, Elector Discretion, Voting, Election, Presidential Election, Faithless Elector, Article II, Twelfth Amendment, Liquidation, Madison, Popular Vote

Suggested Citation

Green, Rebecca, Liquidating Elector Discretion (April 1, 2020). Harvard Law & Policy Review, 2020 Forthcoming, Available at SSRN:

Rebecca Green (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
(757) 221-3851 (Phone)

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