Document Type


Media Type



In its opinion in Chiafalo v. Washington, the Supreme Court disposes of the actual history of elector discretion as too inconsequential to merit its serious analysis. A history of elector discretion not only includes a history of the electors who exercised discretion when casting electoral votes, it also includes a history of commentary on the role of electors as the Constitution was created and, more importantly, as Congress was attempting to amend it. The Court almost completely ignores this history. When Congress crafted the Twelfth Amendment in 1803 it recognized that “the right of choice [of president] […] devolve[s] upon” the House of Representatives from the Electoral College. Section 4 of the Twentieth Amendment twice repeats this text. As the House Committee reporting the Twentieth Amendment reported it to the full House in 1932 it acknowledged that electors are free to exercise discretion. Earlier versions of this Article served as the primary input to amicus briefs filed in the author’s name in Chiafalo. This Article reviews the relevant episodes of congressional history as well as election history to demonstrate that Congress has never understood the Constitution to allow electors to be bound with legal consequences.

First Page


Last Page


Publication Date









Northern Illinois University Law Review

Suggested Citation

Michael L. Rosin, A History of Elector Discretion, 41 N. Ill. U. L. Rev. 125 (2020).

Included in

Law Commons



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.