The Supreme Court Just Unanimously Ruled That Voting Doesn’t Necessarily Include Free Choice — And No One Noticed.
The unanimous Supreme Court decision in CHIAFALO v. WASHINGTON is not only a testament to the grip of the two major political parties on our national elections, it contains one of the most startling jurisprudential turns of our lifetime. We have just learned that “voting” doesn’t necessarily include choosing whom to vote for. The State can tell you how to vote — and punish you if you don’t comply — on behalf of political parties.
Four liberal justices, including Justice Kagan writing for the court, long advocates of voting rights and an active Federal enforcement of those rights, signed off on the argument that to “vote” in the United States does not necessarily include “discretion” — in other words, choice.
The same liberal justices, who have never given credence to strict originalism, and have always advocated examination of the authors’ intent, also signed off on the argument that since “the Framers did not reduce their thoughts about electors’ discretion to the printed page,” their intent — which we know without a doubt — isn’t relevant.
Still, this foray into originalism didn’t last long; though the decision explicitly rejects the plaintiff’s argument that “long settled and established practice” indicates that voting necessarily involves choice, it does mean that states can force electors to support their party’s nominee. This, despite the fact that voting has always everywhere been understood to mean the voter has a choice — whether in the ballot booth, on a jury, or on an elected body like a legislature, commission, or board of supervisors. But the control of electors by political parties is both more recent, and is entirely extra-Constitutional.
Are we now to understand that states can force voters, jurors, and legislators at any level of government to vote a certain way upon legal penalty?
“Nothing in the Constitution expressly prohibits States from taking away presidential electors’ voting discretion as [the State of] Washington does,” writes Justice Kagan for the court. But nothing expressly prohibits government from taking away the discretion of any voter. The commonly understood, unquestioned meaning of voting has always necessarily and self-evidently included voter choice, so such explicit prohibitions would never have been considered. They’re completely extraneous. Their omission is evidence for the commonly understood meaning of “voting,” not evidence that the framers were leaving some ambiguity about the most important feature of representative government, and open to the possibility that voting might be an exercise in obedience instead of democracy. Obviously, they understood voting to mean what we all (except the nine members of the Supreme Court, apparently) understand it to mean. It means we get to choose.
The United States Supreme Court has now, for the first time in human history as far as I am aware, argued that voting does not necessarily include freedom of choice. This should greatly concern every American.
Meanwhile, conservative justices, long advocates of originalism, signed off on this decision as well, with Brett Kavanugh citing the ostensible “chaos” that would ensue if the original intent of the framers were followed. But what he calls chaos is just the messiness of representative government, as created by Madison, Hamilton, et al. For an originalist to reject their version of it, as made so clear in the Federalist Papers and the Constitutional Convention minutes, based simply on custom or convenience is quite a spectacle — almost as startling as voting rights advocates redefining the meaning of “vote.”
Why these somersaults to preserve an antiquated system? Can it really be that political parties, not mentioned anywhere in the Constitution, can lay claim to the electoral system, while at the same time “voting” can mean “voting as you are told”? Is that the electoral system most Americans think we have?
It’s clear the Court wanted a certain result and worked backwards from there. In doing so, with its new upside-down definition of voting, it has set a confusing precedent that could impact the very foundations of representative government.